Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 4 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Corium International, Inc.), Investors’ Rights Agreement (Corium International, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders holding a majority in interest of the Registrable Securities held by such Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 4 contracts
Sources: Investors’ Rights Agreement (Opti-Harvest, Inc.), Investors’ Rights Agreement (Opti-Harvest, Inc.), Investors’ Rights Agreement (Opti-Harvest, Inc.)
Underwriting. If the Initiating Holders intend to distribute Unless the Registrable Securities covered may be registered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such eventon Form S-3, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 1.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 1.2 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 1.2, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 1 (including Section 2.101.13). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in majority-in-interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.11.2, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; provided, however, that the number of shares of Registrable Securities to be included in such underwriting and (ii) second, to the Company, which registration shall not be reduced unless all other securities of the Company may allocate, at its discretionare first entirely excluded from the underwriting and registration. For purposes of the preceding parenthetical concerning apportionment, for its own accountany selling stockholder which is a holder of Registrable Securities and which is a venture capital fund, partnership or corporation, the affiliated venture capital funds, partners, retired partners, members, former members and stockholders of such holder, or the estates and family members of any such partners and retired partners, members and former members and any trusts for the account benefit of other holders or employees any of the Companyforegoing persons shall be deemed to be a single “selling stockholder,” and any pro-rata reduction with respect to such “selling stockholder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “selling stockholder,” as defined in this sentence. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d)1.2, then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Roblox Corp), Investors’ Rights Agreement (Roblox Corp), Investors’ Rights Agreement (Roblox Corp)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means The piggyback and participation rights of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given any Holder pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all 3 or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 4 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10terms of, and participation in, the underwriting arrangements as agreed to by the Company and the managing underwriter(s). The Company All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with all Holdersthe Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting; provided, however, notwithstanding any other provisions in this Agreement, each Holder, in its capacity as a Holder, shall not be required by any underwriting agreement (or other agreement in connection with such offering) (i) to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the ownership of such Holder’s Registrable Securities and such Holder’s intended method or methods of disposition and any other representation required by a majority in interest law or (ii) to furnish any indemnity to any Person which is broader than the indemnity furnished by such Holder pursuant to Section 8(b). In the event of the Initiating Holders, which underwriters are reasonably acceptable to any registration or offering initiated by the Company, the Company shall select the underwriters to participate in such registration or offering in its sole discretion. Notwithstanding any other provision of this Section 2.14, if the underwriters advise the Initiating Holders in writing managing underwriter(s) determine that marketing factors require a limitation on of the number of shares to be underwrittenunderwritten in a Company-initiated registration or offering, the Company shall so advise all Holders whose securities would otherwise be registered or offered pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration or underwritten offering shall be so included limited and, except as otherwise provided herein, shall be allocated as follows: :
(i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and Company;
(ii) second, to the Company, which the Company may allocate, at its discretion, if there remains additional availability for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any additional Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced or underwritten offering, among all Holders in proportion, as a result nearly as practicable, to the respective amounts of marketing factors Registrable Securities requested by such Holders to be included in the registration or underwritten offering; and
(iii) third, if there remains availability for additional securities to be included in such registration or underwritten offering, pro rata among any other Persons who have been granted registration rights, or who have requested participation in such registration or underwritten offering. If any Holder disapproves of the terms of any underwriting related to any underwritten offering effected pursuant to Section 3 or this Section 2.1(d4, the Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter(s). If by the withdrawal of such Registrable Securities a greater number of shares of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the managing underwriter(s)), then the Company shall then offer to all Holders that who have retained rights to include securities included Registrable Securities in the registration or underwritten offering the right to include additional shares of Registrable Securities in the registration same proportion used in an aggregate amount equal to determining the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveparticipation limitation in Section 3(c) or this Section 4(b).
Appears in 3 contracts
Sources: Registration Rights Agreement (Tallgrass Energy GP, LP), Registration Rights Agreement (Kelso GP VIII, LLC), Registration Rights Agreement (Tallgrass Energy GP, LP)
Underwriting. If the Initiating Holders intend to distribute Unless the Registrable Securities covered may be registered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such eventon Form S-3, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company; provided, however, that the liability of each Holder of Registrable Securities in respect of any indemnification, contribution or other obligation of such Holder arising under such underwriting agreement (i) shall be limited to losses arising out of or based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement, incorporated document or other such disclosure document or other document or report, in reliance upon and in conformity with written information furnished to the Company by or on behalf of, and relating to, such Holder expressly for inclusion therein and (ii) shall not in any event exceed an amount equal to the net proceeds to such Holder (after deduction of all underwriters’ discounts and commissions paid by such Holder) from the disposition of the Registrable Securities disposed of by such Holder pursuant to such registration. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; and (iii) third, to the Other Selling Stockholders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Eargo, Inc.), Investors’ Rights Agreement (Eargo, Inc.), Investors’ Rights Agreement (Eargo, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in such a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.102.9). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Juno Therapeutics, Inc.), Investors’ Rights Agreement (Juno Therapeutics, Inc.), Investors’ Rights Agreement (Juno Therapeutics, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in a underwriting. In such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If case, if the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders holding in the aggregate a majority in interest of the Registrable Securities held by the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion (provided that if, by operation of this clause (i), the number of Registrable Securities to be so included is reduced to less than 50% of the aggregate number of Registrable Securities so requested by all Holders on to be included, then the holders of a Fully Diluted basismajority of the Registrable Securities may withdraw the request for such registration and, in such a case, (A) such registration shall not be counted as a registration “initiated” by the Company for purposes of Section 2.1(b)(iv) or “effected” by the Company for purposes of Section 2.3(b)(iii) and (B) the Company shall bear the Registration Expenses of such registration notwithstanding any provision of Section 2.4 to the contrary); and (ii) second, among all Other Selling Stockholders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders stockholders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Corvus Pharmaceuticals, Inc.), Investors’ Rights Agreement (Corvus Pharmaceuticals, Inc.), Investors’ Rights Agreement (Corvus Pharmaceuticals, Inc.)
Underwriting. If the Initiating Holders intend Company intends to distribute the Registrable Securities covered by their request its registration by means of an underwritingunderwritten offering, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.4(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2.4 shall be conditioned upon such Holder’s participation in such underwriting underwritten offering and the inclusion of such Holder’s Registrable Securities in the underwritten offering to the extent provided herein. If the The Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf together with all participating Holders of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation Registrable Securities of the Company in (if any) proposing (and permitted) to distribute their securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) underwritten offering, enter into an underwriting agreement in customary form (containing such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type) with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest the Company. Such underwriting agreement shall contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Initiating HoldersHolders party thereto as are customarily made by issuers to selling stockholders in secondary underwritten public offerings. No Holder shall be entitled to participate in such underwritten offering unless such Holder completes and executes all questionnaires, which underwriters are reasonably acceptable to powers of attorney, indemnities and other documents required under the Companyterms of such underwriting agreement. Notwithstanding any other provision of this Section 2.12.4, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a registration pursuant to this Section 2.4 shall advise the Initiating Company and the Existing Holders that have requested to participate in writing such registration that marketing factors require the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without being likely to have a limitation significant adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the number of shares of Registrable Securities that may be included in such registration shall be (1) first, 100% of the securities that the Company proposes to be underwrittensell, (2) second, and only if all the securities referred to in clause (1) have been included, the number of Registrable Securities that may the Existing Holders proposed to include in such registration, which, in the opinion of such managing underwriter or underwriters, can be so included shall sold without having such adverse effect in such registration, with such number to be allocated as follows: (i) first, pro rata among all such Existing Holders requesting that have requested to include Registrable Securities participate in such registration statement based on the pro rata percentage relative number of Registrable Securities then held by each such Existing Holder (provided, that any securities thereby allocated to an Existing Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Existing Holders on a Fully Diluted basis; in like manner) and (ii3) secondthird, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees only if all of the Company. If a person who has requested Registrable Securities referred to in clause (2) have been included in such registration, any other securities eligible for inclusion in such registration as provided above does not agree to that, in the terms opinion of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or the Initiating Holders. The securities so excluded shall also underwriters, can be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from sold without having such underwriting shall also be withdrawn from adverse effect in such registration. If shares are so withdrawn No securities excluded from the registration and if underwriting by reason of the number of shares to managing underwriter’s or underwriters’ marketing limitation shall be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveregistration.
Appears in 3 contracts
Sources: Registration Rights Agreement (Vmware, Inc.), Separation and Distribution Agreement (Vmware, Inc.), Separation and Distribution Agreement (Dell Technologies Inc.)
Underwriting. If the Initiating Holders Major Holder requesting registration under this Section 2.2 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 2.2(a), and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i2.2(a). In such event, the right of any Holder to include all or any portion of its such Holder’s Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 2.2(a) of securities being sold for its own account, the Initiating Major Holders shall, on behalf of all Holders, offer to include such securities in the underwriting underwriting, and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10)securities. The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the Companyinitiating Holders, unless the Company itself shall be the selected underwriter, in which case the consent of the Holders shall not be required. Notwithstanding any other provision of this Section 2.12.2, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Company securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement Registration Statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion or exercise; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Major Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Merriman Curhan Ford Group, Inc.), Investors’ Rights Agreement (Unterberg Thomas I), Investors’ Rights Agreement (Merriman Curhan Ford Group, Inc.)
Underwriting. If the Initiating Holders intend propose to distribute the Registrable Securities covered by their request by means of pursuant to an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)2. The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Holders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Holders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Holders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (GP Investments Acquisition Corp.), Investors’ Rights Agreement (Rimini Street, Inc.), Investors’ Rights Agreement (Rimini Street, Inc.)
Underwriting. If Subject to the Initiating Holders intend to distribute last sentence of Section 3.3(a), if the Registrable Securities covered by their request by means registration of which the Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i3.3(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 3.3 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If All Holders proposing to dispose of their Registrable Securities through such underwriting, together with the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s other parties distributing their securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company through such underwriting, shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.13.3, if the underwriters shall advise the Initiating Holders in writing Company that marketing factors (including, without limitation, an adverse effect on the per share offering price) require a limitation on of the number of shares to be underwritten, then the Company may limit the number of Registrable Securities to be included in the registration and underwriting, subject to the terms of this Section 3.3. The Company shall so advise all Holders of Registrable Securities that have requested to participate in such offering, and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as followsin the following manner: (i) first, among all to the Company and second, to the Holders requesting to include Registrable Securities in such registration statement on a pro rata basis based on the pro rata percentage total number of Registrable Securities held by the Holders; provided, that any Registrable Securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders on a Fully Diluted basis; and in like manner. No such reduction shall (iii) second, to reduce the Company, which securities being offered by the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such the registration was previously reduced as a result and underwriting, or (ii) reduce the amount of marketing factors pursuant to this Section 2.1(d), then securities of the Company shall then offer to all selling Holders that have retained rights to include securities included in the registration below twenty-five percent (25%) of the right to total amount of securities included in such registration, unless such offering does not include additional shares of any other selling security holders, in which event any or all of the Registrable Securities of the Holders may be excluded in accordance with the registration immediately preceding sentence. No securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveregistration.
Appears in 3 contracts
Sources: Stockholders Agreement (Grocery Outlet Holding Corp.), Stockholders Agreement (Grocery Outlet Holding Corp.), Stockholders Agreement (Grocery Outlet Holding Corp.)
Underwriting. If In the Initiating case of any offering made in accordance with Section 2(a), other than an offering made pursuant to a Takedown Demand:
(i) if the Requesting Equity Holders intend to distribute the Registrable Securities covered by their request Shares by means of an underwritingUnderwritten Offering, they shall so advise the Company as a part of their its request made pursuant to this Section 2.1 2(a) and the Company managing underwriter for such Underwritten Offering shall include such information be chosen by the holders of a majority in aggregate amount of the Registrable Shares (x) being registered by members of the Sponsor Group, in the written notice given case of an offering pursuant to Section 2.1(a)(i)a Demand Registration where any member of the Sponsor Group is the Requesting Equity Holder or (y) in any other case, being registered by all Equity Holders, and in each case, with the consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. In such event, If the right holders of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the Other Shares request inclusion of such Holder’s Registrable Securities to shares, the extent provided herein. If Equity Holders agree that the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to may include such securities shares in the underwriting and Underwritten Offering so long as such offer shall holders agree to be conditioned upon bound by the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10)2. The Requesting Equity Holders and the Company shall (together with all Holdersother Eligible Holders proposing to distribute their Eligible Shares through such Underwritten Offering) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are and reasonably acceptable to the CompanyCompany with the underwriter or underwriters. Notwithstanding any other provision of this Section 2.12, if the underwriters advise the Initiating Holders managing underwriter selected as provided in writing this Section 2(c) determines that marketing factors require a limitation on the number of shares to be underwrittenunderwritten in such Underwritten Offering, the managing underwriter may limit the number of Registrable Securities that may shares proposed to be so included shall be allocated in such registration and Underwritten Offering as follows: :
(i1) first, among all Holders requesting to include Registrable Securities in the Primary Shares shall be excluded from such registration statement based on to the pro rata percentage of Registrable Securities held extent so required by such Holders on a Fully Diluted basis; and limitation;
(ii2) second, to the Companyextent further limitation is required by the managing underwriter, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Other Shares shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from registration to the extent so required by such registration. If shares are so withdrawn from the registration and if limitation such that the number of shares to be included by such holders of Other Shares shall be determined on a pro rata basis based upon the aggregate number of Other Shares held by each such holder seeking registration; and
(3) third, to the extent further limitation is required by the managing underwriter, the remaining Registrable Shares held by Equity Holders shall be excluded from such registration to the extent so required by such limitation such that the number of Registrable Shares held by Equity Holders to be included in the offering shall be determined on a pro rata basis based upon the aggregate number of Registrable Shares held by each Equity Holder seeking registration.
(ii) No Other Shares, Primary Shares or Registrable Shares excluded from the Underwritten Offering by reason of the underwriter’s marketing limitation shall be included in such Underwritten Offering, and any Eligible Holder who has requested inclusion in such Underwritten Offering as provided above (including the Requesting Equity Holders) may elect to withdraw therefrom at any time prior to the effectiveness of such registration was previously reduced as statement by written notice to the Company, the managing underwriter and the Requesting Equity Holders; provided that, if the underwriters’ counsel reasonably determines that such withdrawal would materially delay the registration or require a result recirculation of marketing factors pursuant to this Section 2.1(d)the prospectus, then the Company no Eligible Holder shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in withdraw unless the registration in an aggregate amount equal Requesting Equity Holders have elected to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth abovewithdraw.
Appears in 3 contracts
Sources: Registration Rights Agreement (GoDaddy Inc.), Registration Rights Agreement (GoDaddy Inc.), Registration Rights Agreement (GoDaddy Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means The piggyback and participation rights of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given any Holder pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all 3 or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 4 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10terms of, and participation in, the underwriting arrangements as agreed to by the Company and the managing underwriter(s). The Company All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with all Holdersthe Company) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting; provided, however, notwithstanding any other provisions in this Agreement, each Holder, in its capacity as a Holder, shall not be required by any underwriting agreement (or other agreement in connection with such offering) (i) to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements regarding such Holder, the ownership of such Holder’s Registrable Securities and such Holder’s intended method or methods of disposition and any other representation required by a majority in interest law or (ii) to furnish any indemnity to any Person which is broader than the indemnity furnished by such Holder pursuant to Section 8(b). In the event of the Initiating Holders, which underwriters are reasonably acceptable to any registration or offering initiated by the Company, the Company shall select the underwriters to participate in such registration or offering in its sole discretion. Notwithstanding any other provision of this Section 2.14, if the underwriters advise the Initiating Holders in writing managing underwriter(s) determine that marketing factors require a limitation on of the number of shares to be underwrittenunderwritten in a Company-initiated registration or offering, the Company shall so advise all Holders whose securities would otherwise be registered or offered pursuant hereto, and the number of shares of Registrable Securities that may be included in the registration or underwritten offering shall be so included limited and, except as otherwise provided herein, shall be allocated as follows: :
(iiii) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company;
(iv) second, which the Company may allocate, at its discretion, if there remains additional availability for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any additional Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced or underwritten offering, among all Holders in proportion, as a result nearly as practicable, to the respective amounts of marketing factors Registrable Securities requested by such Holders to be included in the registration or underwritten offering; and
(v) third, if there remains availability for additional securities to be included in such registration or underwritten offering, pro rata among any other Persons who have been granted registration rights, or who have requested participation in such registration or underwritten offering. If any Holder disapproves of the terms of any underwriting related to any underwritten offering effected pursuant to Section 3 or this Section 2.1(d4, the Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter(s). If by the withdrawal of such Registrable Securities a greater number of shares of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the managing underwriter(s)), then the Company shall then offer to all Holders that who have retained rights to include securities included Registrable Securities in the registration or underwritten offering the right to include additional shares of Registrable Securities in the registration same proportion used in an aggregate amount equal to determining the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveparticipation limitation in Section 3(b) or this Section 4(b).
Appears in 3 contracts
Sources: Registration Rights Agreement (GIC Private LTD), Registration Rights Agreement (Tallgrass Energy, LP), Registration Rights Agreement (Blackstone Holdings III L.P.)
Underwriting. If (a) The distribution of the Initiating Holders intend to distribute the Registrable Offerable Securities covered by their the request of the Holders shall be effected by means of the method of distribution permitted hereunder (with consent obtained as applicable hereunder) and as selected by the Holders with prior notice to the Company and WM Sub. If such distribution is effected by means of an underwriting, they shall so advise the Company as a part right of their request made each Holder to offer or register pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 Article 2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Offerable Securities in the underwriting (unless otherwise agreed by the Holders that requested the registration) to the extent provided herein. .
(b) If such distribution is effected by means of an underwriting, the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company Holders shall (together with all Holders) enter into an underwriting agreement in customary form with the representative a managing underwriter of the underwriter or underwriters internationally recognized standing selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1Article 2, if the underwriters advise managing underwriter advises the Initiating Company or the Holders in writing that marketing factors require a limitation on of the number of shares Offerable Securities to be underwritten, then the underwriters may exclude Offerable Securities requested to be included in such registration. In such case, the number of Registrable Offerable Securities that may to be so included in the registration and underwriting shall be allocated as followsallocated: (i1) firstto the Holders, among all Holders requesting as nearly as practicable to include Registrable the respective amounts of Offerable Securities requested to be included in such registration statement based on Offering Document by the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; and (ii2) second, to the Company, for its account, to the extent that the Company wishes to participate in the Offering pursuant to Section 2.4. No Offerable Securities or other securities excluded from the underwriting by reason of the managing underwriter’s marketing limitation shall be included in such registration.
(c) If, following a roadshow or other distribution efforts, the Holders disapprove of the price at which the Company Offerable Securities are to be sold, the Holders may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree elect to the terms of any such underwriting, such person shall be excluded irrevocably withdraw therefrom by written notice from to the Company, WM Sub and the underwriter or managing underwriter. If applicable, the Initiating Holders. The securities Offerable Securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or If a requested offering is withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.3(c), then the Company Holders shall then offer to all Holders that have retained rights to include securities in the registration the lose a right to include additional Registrable request a registration of Offerable Securities in the and such withdrawn offering shall constitute a demand registration in an aggregate amount equal to the number for purposes of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveSections 2.1 and 2.2.
Appears in 3 contracts
Sources: Offering Rights Agreement, Offering Rights Agreement (Wal Mart Stores Inc), Offering Rights Agreement (Wal Mart Stores Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; and (ii) second, to the Other Selling Equity Holders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Other Selling Equity Holders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. In no event shall the number of Registrable Securities or Other Shares underwritten in such registration be limited unless and until all shares held by persons other than Holders or Other Selling Equity Holders including the Company, are completely excluded from such offering. Notwithstanding the foregoing, no such reduction shall reduce the value of the Registrable Securities of the Holders included in such registration below thirty percent (30%) of the total value of securities included in such registration. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Equity Holders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Equity Holders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Registration Rights Agreement (Zevia PBC), Registration Rights Agreement (Caisse De Depot Et Placement Du Quebec), Registration Rights Agreement (Zevia PBC)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such a underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders (on a Fully Diluted an as-converted to Common Stock basis); and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Appdynamics Inc), Investors’ Rights Agreement (Appdynamics Inc)
Underwriting. 6.1 If requested by the Initiating Holders intend to distribute the underwriters for any underwritten offering of Registrable Securities covered by their request by means of an underwritingpursuant to a registration hereunder, they shall so advise the Company will enter into and perform its obligations under an underwriting agreement with the underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as a part of their request made pursuant are customarily contained in underwriting agreements with respect to this Section 2.1 secondary distributions, including, without limitation, customary provisions relating to indemnities and contribution and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right provision of any Holder to include all or any portion opinions of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting counsel and the inclusion of such Holder’s Registrable Securities to the extent provided herein. accountants’ letters.
6.2 If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account3 hereof shall involve, the Initiating Holders shallin whole or in part, on behalf of all Holdersan underwritten offering, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any require Registrable Securities or other securities excluded or withdrawn from such underwriting shall also requested to be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares registered pursuant to Section 3 to be included in such underwriting on the same terms and conditions as shall be applicable to the securities being sold through underwriters under such registration. In such case, Holders, if requesting registration, shall be a party to any such underwriting agreement. Such agreement shall contain such representations and warranties by the Holders requesting registration was previously reduced and such other terms and provisions as a result are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, provisions relating to indemnities and contribution.
6.3 In any offering of marketing factors Registrable Securities pursuant to this Section 2.1(da registration hereunder, Holders shall also enter into such additional or other agreements as may be customary in such transactions, which agreements may contain, among other provisions, such representations and warranties as the Company or the underwriters of such offering may reasonably request (including, without limitation, those concerning Holders their Registrable Securities, Holders’ intended plan of distribution and any other information supplied by it to the Company for use in such registration statement), then the Company shall then offer and customary provisions relating to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveindemnities and contribution.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lightyear Fund Ii Lp), Merger Agreement (Vantagesouth Bancshares, Inc.), Merger Agreement (YADKIN FINANCIAL Corp)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders holding a majority in interest of the Registrable Securities held by all Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 3 contracts
Sources: Investors’ Rights Agreement (Castle Biosciences Inc), Investors’ Rights Agreement (Castle Biosciences Inc), Investors’ Rights Agreement (Castle Biosciences Inc)
Underwriting. If If, pursuant to this Section 1.3, the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and 1.3(a). The underwriter(s) will be selected by the Company shall include such information in Initiating Holders, subject only to the written notice given pursuant to Section 2.1(a)(i)reasonable approval of the Company. In such event, the right of any Holder to include all or any portion of its such Holder’s Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters underwriter(s) selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Companyunderwriting. Notwithstanding any other provision of this Section 2.11.3(b), if the underwriters advise managing underwriter(s) advise(s) the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, then the Initiating Holders shall so advise all Holders of Registrable Securities that otherwise would be underwritten pursuant hereto, and the number of Registrable Securities that may be so included in the underwriting shall be allocated among such Holders of Registrable Securities, including the Initiating Holders, in proportion (as follows: (inearly as practicable) first, among all Holders requesting to include the number of Registrable Securities owned by each Holder or in such registration statement based on other proportion as shall mutually be agreed to by all such selling Holders; provided, however, that the pro rata percentage number of Registrable Securities held by such the Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously underwriting shall not be reduced as a result unless all other securities are first entirely excluded from the underwriting. To facilitate the allocation of marketing factors pursuant to this Section 2.1(d)shares in accordance with the above provisions, then the Company shall then offer to all Holders that have retained rights to include securities in or the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to underwriters may round the number of shares so withdrawn, with such shares allocated to be allocated among such Holders requesting additional inclusion, as set forth aboveany Holder to the nearest one hundred (100).
Appears in 3 contracts
Sources: Investor Rights Agreement, Investor Rights Agreement (Inspire Medical Systems, Inc.), Investor Rights Agreement (Inspire Medical Systems, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s 's and such person's other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; provided, however, in no event shall any Registrable Securities be excluded from such offering unless all Other Shares are first excluded. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors' Rights Agreement (Quantenna Communications Inc), Investors' Rights Agreement (Quantenna Communications Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder the Investor to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holderthe Investor’s participation in such an underwriting and the inclusion of such Holderthe Investor’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, Investor shall offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersstockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Companyunderwriting. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating HoldersInvestor. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Common Stock Purchase Agreement (Northumberland Resources, Inc.), Investors’ Rights Agreement (Northumberland Resources, Inc.)
Underwriting. If (i) Subject to Section 8.01(e), the Initiating Holders intend to distribute distribution of the Registrable Securities Series A Stock covered by their request the Demand Registration shall be effected by means of an a firm commitment underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Eligible Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 Article VIII shall be conditioned upon such Holder’s Eligible Holders' participation in such underwriting and the inclusion of such Eligible Holder’s Registrable Securities 's Series A Stock in the underwriting (unless otherwise mutually agreed by a majority in interest of the other Eligible Holders) to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersEligible Holders proposing to distribute their Series A Stock through such underwriting) shall enter into an underwriting agreement in customary form with the representative a managing underwriter of the underwriter or underwriters nationally recognized standing selected for such underwriting by a majority in interest the Company with the approval of the Initiating HoldersEligible Holder that has included the largest number of shares in the Demand Registration, which underwriters are reasonably acceptable such approval not to be withheld unreasonably. No Eligible Holder may participate in any Demand Registration unless such Eligible Holder (A) agrees to sell its Series A Stock on the Company. basis provided in such underwriting agreement and (B) completes and executes all questionnaires, powers of attorney, indemnities and other documents required under the terms of such underwriting agreement.
(ii) Notwithstanding any other provision of this Section 2.1Article VIII, if the underwriters advise managing underwriter advises the Initiating Company and the Eligible Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the number of Registrable Securities that managing underwriter may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has exclude shares requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such Demand Registration. The number of shares of Series A Stock that may be included in the Demand Registration and underwriting shall be allocated among the Eligible Holders who have requested registration was previously reduced as in accordance with the provisions of Section 8.01(f). No Series A Stock excluded from the underwriting by reason of the managing underwriter's marketing limitation shall be included in such Demand Registration.
(iii) If any Eligible Holder participating in a result Demand Registration disapproves of marketing factors pursuant the terms of the underwriting, such person may elect to this Section 2.1(dwithdraw therefrom by written notice to the Company, the managing underwriter and the other Eligible Holders. If by such withdrawal a greater number of shares of Series A Stock held by other Eligible Holders may be included in such Demand Registration (up to the maximum of any limitation imposed by the managing underwriter), then the Company shall then offer to all Eligible Holders that have retained rights to include securities participating in the registration Demand Registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number shares of Series A Stock, which additional shares so withdrawn, with such shares to shall be allocated among such the Eligible Holders requesting additional inclusion, as set forth abovewho have requested registration in accordance with the provisions of Section 8.01(f).
Appears in 2 contracts
Sources: Joint Venture Formation and Stockholders Agreement (Gemstar International Group LTD), Joint Venture Formation and Stockholders Agreement (Gemstar International Group LTD)
Underwriting. If the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration intend to distribute the Registrable Securities covered by their request demand by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request demand made pursuant to this Section 2.1 2.4, and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i2.4(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2.4 shall be conditioned upon such Holder’s participation in such underwriting underwritten offering and the inclusion of such Holder’s Registrable Securities in the underwritten offering to the extent provided herein. If the The Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf together with all participating Holders and participating Third Party Holders of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation Registrable Securities of the Company in (if any) proposing (and permitted) to distribute their securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) underwritten offering, enter into an underwriting agreement in customary form (containing such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type) with the representative of the managing underwriter or underwriters selected for by the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration. The Demand Participating Sponsor Holders shall cooperate with the Company in the negotiation of such underwriting by a majority in interest agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such underwriting agreement shall contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Holders and Third Party Holders party thereto as are customarily made by issuers to selling stockholders in secondary underwritten public offerings. No Holder or Third Party Holder shall be entitled to participate in such underwritten offering unless such Holder or Third Party Holder, as the case may be, completes and executes all questionnaires, powers of attorney, indemnities and other documents required under the terms of such underwriting agreement. All reasonable out-of-pocket costs and expenses incurred by the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration in connection with such underwritten offering (to the extent not paid or reimbursed by Company) shall be borne on a pro rata basis in accordance with the number of Registrable Securities being sold by each of the Holders, which underwriters are reasonably acceptable to Third Party Holders and/or the CompanyCompany in such underwritten offering. Notwithstanding any other provision of this Section 2.12.4, if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a Demand Registration shall advise the Company and the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration that the number of securities requested to be included in writing such Demand Registration exceeds the number which can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the Company shall so advise all Holders and Third Party Holders of Registrable Securities that marketing factors require a limitation on have requested to participate in such Demand Registration (other than the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration), and the number of shares to be underwritten, the number of Registrable Securities that may be so included in such Demand Registration (1) first, shall be allocated as follows: (i) firstpro rata among the Demand Participating Sponsor Holders, among all Management Holders requesting and the Temasek Holders that have requested to include Registrable Securities participate in such registration statement Demand Registration based on the pro rata percentage relative number of Registrable Securities then held by each such Demand Participating Sponsor Holder, Management Holder and Temasek Holder (provided, that any securities thereby allocated to such a Demand Participating Sponsor Holder, Management Holder or Temasek Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Demand Participating Sponsor Holders, Management Holders on a Fully Diluted basis; and the Temasek Holders in like manner), (ii2) second, and only if all the securities referred to in clause (1) have been included in such Demand Registration, pro rata among the Companyother Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided, which that any securities thereby allocated to such Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), (3) third, and only if all of the securities referred to in clause (2) have been included in such Demand Registration, the number of securities that the Company may allocateproposes to include in such Demand Registration that, at its discretion, for its own account, or for in the account of other holders or employees opinion of the Company. If a person who has requested managing underwriter or underwriters, can be sold without having such adverse effect and (4) fourth, and only if all of the securities referred to in clause (3) have been included in such Demand Registration, any other securities eligible for inclusion in such registration as provided above does not agree to the terms Demand Registration (including those of any Third Party Holder) that, in the opinion of the managing underwriter or underwriters, can be sold without having such underwritingadverse effect; provided, such person shall be excluded therefrom by written notice from that notwithstanding the Companyforegoing, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any shares of Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to that may be included in such registration was previously reduced Demand Registration shall be subject to the Priority Sell-Down. No Registrable Securities excluded from the underwritten offering by reason of the managing underwriter’s or underwriters’ marketing limitation shall be included in such Demand Registration. Notwithstanding the delivery of any notice of a Demand Registration, all determinations as a result to whether to complete any Demand Registration and as to the timing, manner, price and other terms and conditions of marketing factors any Demand Registration shall be at the sole discretion of the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration. Each of the Holders agrees to reasonably cooperate with each of the other Holders to establish notice, delivery and documentation procedures and measures to facilitate such other Holder’s participation in future potential Demand Registrations pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above2.4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dell Technologies Inc), Registration Rights Agreement (Dell Technologies Inc)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered Company gives notice is for a registered public offering involving an underwriting (which underwriter shall be selected by their request by means of an underwritingthe Company, they in its sole discretion), the Company shall so advise each of the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i3(c)(i)(A). In such event, the right of any Holder each of the Holders to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 3(c) shall be conditioned upon such Holder’s Holders' participation in such underwriting and the inclusion of such Holder’s Holders' Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant The Holders whose shares are to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company included in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company registration shall (together with all Holdersthe Company and the Other Shareholders distributing their Common Stock through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.13(c), if the underwriters advise representative advises the Initiating Holders or the Company in writing that (i) marketing factors require a limitation on the number of shares to be underwrittenunderwritten or (ii) the inclusion of shares held by the officers and directors of the Company in the offering could, in the representative's best judgment, materially reduce the offering price per share, then, in the case of the preceding clause (i), the Common Stock held by Other Shareholders shall be excluded from such underwriting to the extent so required by such limitations and, in the case of the preceding clause (ii), the Common Stock held by officers and directors of the Company shall be excluded from such underwriting to the extent so advised by the representative. If, after exclusion of such shares, further reductions are required to meet the limitation on the number of shares to be underwritten as advised by the representative, the number of Registrable Securities shares that may be so included shall be allocated as follows: (i) first, among all Holders in the underwriting by each Holder requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration shall be reduced, on a pro rata basis (based on the number of shares held at such time by the respective Holders requesting inclusion in such registration), by such minimum number of shares as provided above does is necessary to comply with such limitation (it is hereby understood that the foregoing shall not agree be a limitation on the number of shares of Common Stock to be registered by the Company). If any of the Holders or any officer, director or Other Shareholder disapproves of the terms of any such underwriting, such person shall be excluded he may elect to withdraw therefrom by written notice from to the Company, Company and the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationunderwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to not be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveregistration.
Appears in 2 contracts
Sources: Shareholders Agreement (Cga Group LTD), Shareholders Agreement (Cga Group LTD)
Underwriting. If the Initiating Holders initiating the registration request under this Section 3 (the "INITIATING HOLDERS") intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their its request made pursuant to this Section 2.1 3 and the Company shall include such information in the written notice given pursuant notices referred to in Section 2.1(a)(i3(a)(i) or Section 3(b)(i), as applicable. In such event, the right of any Holder to include all his, her or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company and approved by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.13, if the underwriters advise underwriter(s) advise(s) the Initiating Holders Company in writing that marketing factors require a limitation on of the number of shares securities to be underwrittenunderwritten then the Company shall so advise all Holders of Registrable Securities that would otherwise be registered and underwritten pursuant hereto, and the number of Registrable Securities that may be so included in the underwriting shall be reduced as required by the underwriter(s) and allocated as follows: (i) first, among all to each of the Holders requesting who exercised a contractual right, pursuant to include Registrable Securities in Section 3 to demand that such registration statement be filed, on a pari passu basis based on upon the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of any other holders of incidental or employees "piggyback" registration rights requesting inclusion of the Company. If a person who has requested inclusion their Registrable Securities in such registration as provided above does not agree statement, on a pari passu basis based upon the Registrable Securities held by such holders; and (iii) third, other securities of the Company to the terms be registered on behalf of any other holder. If, as a result of the cutback provisions of the preceding sentence, a Holder is not entitled to include all of its requested Registrable Shares in such underwritingregistration, then the Holder may elect to withdraw its request to include any or all of its Registrable Shares in such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or and withdrawn from such underwriting shall also be withdrawn from such the registration. If shares Notwithstanding the foregoing, each Holder acknowledges and agrees that (a) the allocation provisions set forth in this Section 3(c) are so withdrawn from subject to adjustment in certain circumstances to allow the Company to comply with its obligations to the holders of Transfer Restricted Securities under the Warrant Holders Registration Rights Agreement, and (b) the obligation of the Company to effect a registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal 3 is subject to the number Company's covenant under Section 2.1 of shares so withdrawn, with the Warrant Holders Registration Rights Agreement not to register any securities for certain holders in advance of registering the Transfer Restricted Securities pursuant to such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveagreement.
Appears in 2 contracts
Sources: Investor Rights Agreement (Clearwire Corp), Investor Rights Agreement (Clearwire Corp)
Underwriting. (i) If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.1(a)(i)(A) or Section 2.1(b)(i)(A), as applicable. In such event, the right of any Holder to include all or any portion of his, her or its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to this Section 2.1 of securities being sold for its own account, or if other Persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other Persons in such underwriting and the inclusion of the Company’s and such Person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 II (including including, without limitation, Section 2.102.5 and Section 2.9). The Company shall (together with all HoldersHolders and other Persons proposing to distribute their securities through such underwriting) shall enter into an underwriting agreement in customary form with the representative representative(s) of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to the Company. Initiating Holders holding a majority of the Registrable Securities held by the Initiating Holders that are proposed to be included in such underwriting, and shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents as may be customary and reasonably requested by the managing underwriters or as required under the terms of such underwriting arrangements; provided that no Holder of Registrable Securities or other Persons (other than the Company and its subsidiaries) included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such Holder or Other Person, such Holder’s or other Person’s title to ownership of the securities, such Holder’s or other Person’s power and authority, such Holder’s or other Person’s intended method of distribution (including representations regarding price stabilization or manipulation) and such other representations and warranties personal to such Holder or other Person, if any, as may be customary under the circumstances) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise specifically provided in Section 2.5, or to agree to any lock-up or holdback restrictions, except as otherwise specifically provided in Section 2.9.
(ii) Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwrittenunderwritten in order to consummate the offering in an orderly manner within a price range acceptable to the Initiating Holders, the number of Registrable Securities and Other Shares (and other securities) that may be so included shall be allocated as follows: (iA) first, among all Holders requesting to include Registrable Securities in such registration statement and/or Canadian Prospectus, as applicable, based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; (B) second, to the Other Selling Stockholders requesting to include Other Shares in such registration statement and/or Canadian Prospectus, as applicable, if required by any registration rights agreements with such Other Selling Stockholders and then upon the terms contained therein; and (iiC) secondthird, to the Company, which the Company Board of Directors may allocate, at its discretion, for its the Company’s own account, or for the account of other holders of capital stock or employees of the Company. In no event shall any Registrable Securities be excluded from such registration and underwriting unless all Other Shares and shares allocated to the Company’s own account, or for the account of other holders of capital stock or employees of the Company, have been excluded pursuant to clauses (B) and (C) above.
(iii) If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall be excluded therefrom by written notice from the Company, a representative of the underwriter underwriter(s) or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration pursuant to this Section 2.1(e)(iii) and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e)(ii), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth aboveunder Section 2.1(e)(ii).
Appears in 2 contracts
Sources: Stockholders' Agreement (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Underwriting. If the Initiating Holders intend Abbott intends to distribute the its Registrable Securities covered by their its request by means of a registered public offering involving an underwriting, they Abbott shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in so advise the written other Holders as part of the notice given pursuant to Section 2.1(a)(i3.1(a). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 3.1 shall be conditioned upon such Holder’s participation in such the underwriting arrangements required by this Section 3.1, and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 3.1 of securities being sold for its own account, the Initiating Holders or if other persons shall request inclusion in any registration pursuant to Section 3.1, Abbott shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 3 (including Section 2.103.11). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Company and reasonably acceptable to the CompanyAbbott. Notwithstanding any other provision of this Section 2.13.1, if the underwriters advise managing underwriter advises Abbott and the Initiating Holders Company in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities and Other Shares and the number of shares of Registrable Securities and Other Shares that may be so included in the registration and underwriting shall be allocated as follows: (i) first, to Abbott; (ii) second, among all other Holders requesting thereof in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basisat the time of filing the registration statement; (iii) third, to Other Selling Stockholders; and (iiiv) secondfourth, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; provided, however, that shares to be registered and held by persons other than the Holders and shares to be registered and offered by the Company shall be excluded entirely before any Registrable Securities shall be limited hereunder. No Registrable Securities excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or Other Selling Stockholder disapproves of the terms of any such the underwriting, such person shall be excluded Holder or Other Selling Stockholder may elect to withdraw therefrom by written notice from to the Company, the managing underwriter or and the Initiating Holdersother Holders and Other Selling Stockholder. The Registrable Securities, Other Shares and/or other securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Genelux Corp), Investor Rights Agreement (Genelux Corp)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; and (iii) third, among all Common Holders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Common Holders. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities Securities, Other Shares or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Asante Solutions, Inc.), Investors’ Rights Agreement (Asante Solutions, Inc.)
Underwriting. If In the Initiating Holders intend event that a registration pursuant to distribute the Registrable Securities covered by their request by means of Section 2.2(a) is for a registered public offering involving an underwriting, they AVI shall so advise the Company Holders (as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.2 (a)(i). In such event, the right of any Holder the Holders to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2.2(a) shall be conditioned upon such Holder’s Holders' participation in such the underwriting arrangements required by this Section 2.2(b), and the inclusion of such Holder’s Holders' Warrant Shares which are Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company AVI shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable but subject to the CompanyAVI's reasonable approval. Notwithstanding any other provision of this Section 2.12.2, if the underwriters advise managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then AVI shall so advise all Holders of Warrant Shares which are Registrable Securities and the number of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all Holders requesting thereof in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to at the Company, which time of filing the Company may allocate, at its discretion, for its own account, or for registration statement. No Registrable Securities excluded from the account of other holders or employees underwriting by reason of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person underwriter's marketing limitation shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from included in such registration. If To facilitate the allocation of shares are so withdrawn from in accordance with the registration and if above provisions, AVI or the underwriters may round the number of shares allocated to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal any Holder to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth abovenearest 100 shares.
Appears in 2 contracts
Sources: Registration Rights Agreement (Avi Biopharma Inc), Registration Rights Agreement (Supergen Inc)
Underwriting. If any of the Initiating Holders intend to distribute the Registrable Securities Transfer Restricted Notes covered by their request any Shelf Registration Statement are to be sold in an underwritten offering, the investment banker(s) and manager(s) that will manage the offering will be selected by means the Holders of an underwriting, they shall so advise a majority of the then outstanding Transfer Restricted Notes (determined in accordance with Section 9(d)) included in such offering (after consultation with the Company as a part of their request made pursuant to this Section 2.1 such selection and the Company shall include such information in upon the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion consent of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10, which consent will not be unreasonably withheld or delayed). The If requested by the underwriters, the Company shall (together with all Holders) will promptly enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the CompanyCompany with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and conditions as are customary for underwriting agreements with respect to secondary offerings, including without limitation, indemnities to the effect and to the extent provided in Section 5 hereof. Notwithstanding The Holders of Transfer Restricted Notes on whose behalf such securities are being distributed shall be party to any other provision of this Section 2.1, if such underwriting agreement. Such Holders shall not be required by the Company to make any representations or warranties to the underwriters advise with respect to the Initiating Company or the Transfer Restricted Notes (other than that the Holders are conveying such securities free and clear of all pledges, securities interests, liens, charges, encumbrances, agreements, equities, claims and options of whatever nature), and the Holders shall not be required to indemnify the Company or the underwriters (other than with respect to the matters, and to the extent, provided in writing that marketing factors require a limitation Section 5). Furthermore, the Company shall make available for inspection by the Holders, any underwriter participating in any disposition pursuant to such Shelf Registration Statement, and any attorney, accountant or other agent retained by any Holder or underwriter, all financial and other records and other information, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibilities. No Holder of Transfer Restricted Notes may participate in any underwritten distribution hereunder unless such holder (a) agrees to sell such Holder's Transfer Restricted Notes on the number of shares to be underwrittenbasis provided in any underwriting arrangements approved in accordance with the terms hereof, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (iib) secondcompletes and executes all questionnaires, to the Companypowers of attorney, which the Company may allocateindemnities, at its discretion, for its own account, or for the account of underwriting agreements and other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to documents required under the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth abovearrangements.
Appears in 2 contracts
Sources: Registration Rights Agreement (Trans World Airlines Inc /New/), Registration Rights Agreement (Trans World Airlines Inc /New/)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Company and the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, on a Fully Diluted an as-converted to Common Stock basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; and (iii) third, to the Other Selling Stockholders. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Figure Technology Solutions, Inc.), Investors’ Rights Agreement (FT Intermediate, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the (i) The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such a underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If Subject to Section 2.1(e)(ii), if the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities and its acceptance of the further Company; provided that such person shall have agreed to the applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the Company. Initiating Holders.
(ii) Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (iA) first, among all Holders who are Senior Investors and who are requesting to include their Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders, assuming conversion; (B) second, to the Other Selling Stockholders and Holders on a Fully Diluted basiswho are Junior Investors; and (iiC) secondthird, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. .
(iii) If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
(iv) A registration statement shall not be counted until such time as such registration statement has been declared effective by the SEC (unless the Initiating Holders withdraw their request for such registration (other than as a result of the Initiating Holders becoming aware of a material adverse change in the condition, business or prospects of the Company from that known to the Initiating Holders of at the time of their request and provided that the Initiating Holders have withdrawn their request with reasonable promptness following disclosure by the Company of such material adverse change)).
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Q2 Holdings, Inc.), Investors’ Rights Agreement (Q2 Holdings, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all the Initiating Holders requesting to include Registrable Securities in such registration statement pro rata based on the pro rata percentage number of Registrable Securities held by all such Holders on a Fully Diluted basisInitiating Holders; and (ii) second, among all Holders of Registrable Securities pro rata based on the number of Registrable Securities held by all such Holders; (iii) third, to the Other Selling Stockholders; and (iv) fourth, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. In no event shall any Registrable Securities of the Initiating Holders be excluded from such underwriting unless all other securities are first excluded. Any Registrable Securities excluded or withdrawn from such underwriting shall be withdrawn from the registration. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Minerva Surgical Inc), Investors’ Rights Agreement (Minerva Surgical Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing market factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all the Holders (excluding GECC and CIT) requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to GECC and CIT; (iii) third, to the Other Selling Stockholders; and (iv) fourth, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Zogenix, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant notices referred to Section 2.1(a)(iin Sections 2.1(a) and 2.1(b). In such event, the right of any Holder or the Common Holders to include all or any portion of its Registrable their Subject Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s or such Common Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable or such Common Holder’s Subject Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders and the Common Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such other person’s securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and the Common Holders proposing to distribute their securities through such underwriting) shall enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are managing underwriter(s) shall be reasonably acceptable to Initiating Holders holding at least a majority of the CompanyRegistrable Securities held by such Initiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters managing underwriter(s) advise the Initiating Holders Company in writing that (i) marketing factors require a limitation on the number of shares to be underwritten, or (ii) the number of Registrable Securities that may shares proposed to be so included in the registration would reduce the offering price per share, then the number of shares to be included in the registration and underwriting shall be allocated as follows: (i) first, first among all Holders requesting who indicated to include the Company their decision to distribute any of their Registrable Securities through such underwriting, in such registration statement based on proportion, as nearly as practicable, to the pro rata percentage respective numbers of shares of Registrable Securities held owned by such Holders on a Fully Diluted basis; at the time of filing the registration statement, then, if all such Registrable Securities have been included in the underwriting, to the Common Holders who have indicated to the Company their decision to distribute any of their Subject Securities (not otherwise constituting Registrable Securities) through such underwriting, in proportion, as nearly as practicable, to the number of shares of Subject Securities owned by the Common Holders at the time of filing the registration statement, and (ii) secondthe remainder, if any, to the Company, which . No stock excluded from the Company may allocate, at its discretion, for its own account, or underwriting by reason of managing underwriter(s)’ marketing limitation shall be included in such registration. In no event shall Registrable Securities be excluded from such registration unless all other stockholders’ securities and securities for the account of other holders or employees of the CompanyCompany have been first excluded. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter managing underwriter(s) or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Subject Securities or other securities Securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(f), then the Company shall then offer to all Holders, and thereafter to the Common Holders that who have retained rights to include securities in the registration registration, the right to include additional Registrable Subject Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated first among such Holders requesting additional inclusion, as set forth above, and thereafter to the Common Holders, as set forth above.
Appears in 2 contracts
Sources: Investor Rights Agreement (Smith Electric Vehicles Corp.), Investor Rights Agreement (Smith Electric Vehicles Corp.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(iin subsection 2.1(a). In such event, the right of any Holder or the Key Employee to include all or any portion of its Registrable Subject Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s or the Key Employee’s participation in such underwriting and the inclusion of such Holder’s Registrable or the Key Employee’s Subject Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all HoldersHolders and the Key Employee, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such other person’s securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and the Key Employee proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company, which underwriters shall be reasonably acceptable to a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that (i) marketing factors require a limitation on the number of shares to be underwritten, or a limitation of the total number of shares of the Key Employee to be underwritten, or (ii) the offering price per share would be reduced by the inclusion of the shares of the Key Employee and/or the Company, then the number of shares to be included in the registration and underwriting shall first be allocated among all Holders who indicated to the Company their decision to distribute any of their Registrable Securities through such underwriting, in proportion, as nearly as practicable, to the respective numbers of shares of Registrable Securities owned by such Holders at the time of filing the registration statement, then to the Key Employee who has indicated to the Company his decision to distribute any of his Subject Securities (not otherwise constituting Registrable Securities) through such underwriting, in proportion, as nearly as practicable, to the number of shares of Subject Securities owned by the Key Employee at the time of filing the registration statement, and the remainder, if any, to the Company; provided, however, that if the underwriter determines that marketing factors require a limitation of the number of shares of the Key Employee to be underwritten or that the offering price per share would be reduced by the inclusion of the shares of the Key Employee, then the number of shares of the Key Employee that may be so included shall be allocated reduced, or eliminated from registration, as follows: (i) first, among all Holders requesting to include the underwriter shall advise. No stock excluded from the underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. In no event shall Registrable Securities in be excluded from such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; unless all other stockholders’ securities and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or securities for the account of other holders or employees of the CompanyCompany have been first excluded. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Subject Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(f), then the Company shall then offer to all Holders that Holders, and thereafter to the Key Employee, who have retained rights to include securities in the registration the right to include additional Registrable Subject Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated first among such Holders requesting additional inclusion, as set forth above, and thereafter to the Key Employee.
Appears in 2 contracts
Sources: Investor Rights Agreement (Eagle Pharmaceuticals, Inc.), Investor Rights Agreement (Eagle Pharmaceuticals, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders holding a majority in interest of the Registrable Securities held by such Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; provided, however, that such allocation shall not operate to reduce the aggregate number of Registrable Securities to be included in such registration, if any Holder does not request inclusion of the maximum number of shares of Registrable Securities allocated to it pursuant to its pro rata allocation, in which case the remaining portion of its allocation shall be reallocated among those requesting Holders whose allocations did not satisfy their initial requests, pro rata, on the basis of the number of shares of Registrable Securities held by such Holders on an as-converted to Common Stock basis, and this procedure shall be repeated until all of the shares of Registrable Securities which may be included in the registration on behalf of the Holders have been so allocated. In no event shall the number of Registrable Securities underwritten in such registration be limited unless and until all shares held by persons other than Holders, including the Company, are completely excluded from such offering. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Pubmatic, Inc.), Investors’ Rights Agreement (Pubmatic, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, then they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i)request. In such eventcase, the Holders shall negotiate with an underwriter selected by them and approved by the Company, which approval shall not be unreasonably withheld, with regard to the underwriting of such requested registration; provided, however, that if a majority in interest of the Holders have not agreed with such underwriter as to the terms and conditions of such underwriting within twenty (20) days following commencement of such negotiations, a majority in interest of the Holders may select an underwriter of their choice. The right of any Holder the Holders to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s (i) the Holders’ participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation (unless otherwise agreed by a majority in interest of the Company in Holders requesting such underwriting and registration), (ii) the inclusion entry of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall participating Holders (together with all Holdersthe Company and other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting, and (iii) the completion and execution by the participating Holders of all questionnaires, powers of attorney, indemnities and other documents required under the terms of such underwriting by a majority in interest arrangements; provided, (A) that all of the Initiating representations by the Company to and for the benefit of such underwriter shall also be made to and for the benefit of such Holders of Registrable Securities, (B) that, to the extent it is customary in underwriting agreements relating to offerings of the type contemplated by the Holders, which underwriters are reasonably acceptable all of the other agreements on the part of the Company to and for the benefit of such underwriter shall also be made to and for the benefit of such Holders of Registrable Securities, (C) that any of the conditions precedent to the Company. Notwithstanding obligations of such underwriters under such underwriting agreement shall also be conditions precedent to the obligations of such Holders of Registrable Securities, and (D) that no Holder shall be required to make any representations or warranties to or agreements with the Company or the underwriter(s) other than representations, warranties or agreements regarding such Holder, the Registrable Securities of such Holder and such Holder’s intended method of distribution and any other provision representations required by law or reasonably required by the underwriter(s). For the avoidance of this Section 2.1doubt, if no Holder shall be required to give any representation, warranty or agreement as to whether or not the underwriters advise registration statement under which the Initiating Holders Registrable Securities are registered, or any preliminary prospectus, final prospectus or summary prospectus contained therein, or amendment or supplement thereto, contains any untrue statement of a material fact or omits to state a material fact necessary in writing that marketing factors require order to make the statements therein, in light of the circumstances under which they were made not misleading, or words to a limitation on the number of shares to be underwritten, the number similar effect. If any Holder of Registrable Securities that disapproves of the terms of the underwriting, such Holder may be so included shall be allocated as follows: (i) first, among elect to withdraw all Holders requesting to include of its Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, written notice to the Company, the managing underwriter and the other Holder; provided that such registration shall be counted as a Demand Registration for the purposes of calculating the remaining number of Demand Registrations to which the Company may allocate, at its discretion, for its own account, or for Holders are entitled pursuant to Section 2.2 of this Agreement unless all the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree Holders withdraw their Registrable Securities pursuant to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holdersthis sentence. The securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Central European Distribution Corp), Registration Rights Agreement (Central European Distribution Corp)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the (i) The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. .
(ii) Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. ; provided that, a registration will only count against the limit set forth in Section 2.1(b)(iv) if (i) all Registrable Securities requested to be registered are registered, and (ii) it is closed, or withdrawn at the request of the Holders (other than a withdrawal by the Holders that is based upon material adverse information relating to the Company that is different from the information known or available (upon request from the Company or otherwise) to the Holders requesting registration at the time of their request for registration under this Section 2.1).
(iii) If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Annexon, Inc.), Investors’ Rights Agreement (Annexon, Inc.)
Underwriting. If the Initiating Holders intend to distribute Unless the Registrable Securities covered may be registered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such eventon Form S-3, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, among all Other Selling Stockholders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (ForgeRock, Inc.), Investors’ Rights Agreement (ForgeRock, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 8.5 and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i)8.5(a) (i) above. In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 8.5 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities he holds. If officers or directors of the Company holding other securities of the Company shall request inclusion in any registration pursuant to Section 2.1 8.5, or if holders of securities being sold for its own accountof the Company who are entitled, by contract with the Company, to have securities included in such a registration (the "Other Shareholders") request such inclusion, the Initiating Holders shall, on behalf of all Holders, offer to include the securities of such securities officers, directors and Other Shareholders in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)8. The Company shall (together with all Holders, officers, directors and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form (including, without limitation, customary indemnification and contribution provisions on the part of the Company) with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Holders and reasonably acceptable to the Company; provided that such underwriting agreement shall not provide for indemnification or contribution obligations on the part of Holders greater than the obligations of the Holders pursuant to Section 8.10(b). Notwithstanding any other provision of this Section 2.18.5, if the underwriters advise representative advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the securities of the Company held by officers or directors of the Company (other than Registrable Securities) and the securities held by Other Shareholders (other than Registrable Securities) shall be excluded from such registration to the extent so required by such limitation and if a limitation of the number of shares is still required, the Initiating Holders shall so advise all Holders of Registrable Securities whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all such Holders requesting in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities and other securities which they held by such Holders on a Fully Diluted basis; and (ii) second, to at the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees time of the Companyrequest for registration made by the Initiating Holders pursuant to Section 8.5(a). No Registrable Securities or any other securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. If a person any Holder of Registrable Securities, officer, director or Other Shareholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any If the underwriter has not limited the number of Registrable Securities or other securities excluded or withdrawn from to be underwritten, the Company may include its securities for its own account in such underwriting shall also be withdrawn from such registration. If shares are registration if the underwriter so withdrawn from the registration agrees and if the number of shares to be Registrable Securities and other securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to and underwriting will not thereby be allocated among such Holders requesting additional inclusion, as set forth abovelimited.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Century Electronics Manufacturing Inc), Preferred Stock Purchase Agreement (Century Electronics Manufacturing Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request pursuant to this Section 2.1 by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall select the underwriters (subject to the consent of the Initiating Holders holding a majority of Registrable Securities to be included in such underwriting, which such approval shall not be unreasonably withheld or delayed) and (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Companyunderwriting. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; provided, however, that the number of shares of Registrable Securities to be included in such underwriting shall not be reduced unless all other securities are first entirely excluded from the underwriting. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn or excluded from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawnwithdrawn or excluded, with such shares to be allocated pro rata among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Cardiva Medical, Inc.), Investors’ Rights Agreement (Cardiva Medical, Inc.)
Underwriting. (i) If the Initiating Holders under Section 2.1(a) or the requesting Holder or Holders under Section 2.1(b) intend to distribute all or part of the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Corporation as a part of their request made pursuant to this Section 2.1 and the Company Corporation shall include such information in the written notice given pursuant to Section 2.1(a)(i2.1(a)(i)(A) or Section 2.1(b)(i)(A), as applicable. In such event, the right of any Holder to include all or any portion of its such Holder’s Registrable Securities in a such registration (or portion thereof that will be underwritten) pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company Corporation shall request inclusion in any registration pursuant to this Section 2.1 of securities being sold for its own account, or if any other Person shall request inclusion in any registration pursuant to this Section 2.1, the Initiating Holders under Section 2.1(a) or the requesting Holder or Holders under Section 2.1(b) shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company Corporation or such other Persons in such underwriting and the inclusion of the CompanyCorporation’s and such Person’s other securities of the Corporation and its their acceptance of the further applicable provisions of this Section 2 II (including Section 2.102.9). The Company Corporation shall (together with all HoldersHolders and other Persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCorporation, which underwriters are reasonably acceptable to the Company. Initiating Holders under Section 2.1(a) or the requesting Holder or Holders under Section 2.1(b) holding at least a majority of the Registrable Securities that are proposed to be included in such underwriting.
(ii) Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders under Section 2.1(a) or the requesting Holder or Holders under Section 2.1(b) in writing that marketing factors require a limitation on the number of shares Shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (iA) first, among all Holders requesting to include Registrable Securities in such registration statement Registration Statement, or for a Registration Statement filed on Form S-3 providing for an offering of securities on a continuous basis, requesting all or a portion of such Registrable Securities to be included in such underwriting based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, which pro rata percentage shall be based upon the aggregate amount of Registrable Securities owned by all such related entities and individuals; and (iiB) second, to the CompanyCorporation, which the Company Board may allocate, at its discretion, for its the Corporation’s own account, account or for the account of other holders or employees Other Selling Stockholders. For purposes of the Company. preceding sentence concerning apportionment, for any selling stockholder that is a Holder and that is a venture capital or private equity fund, partnership, limited partnership, limited liability company or corporation, the affiliated venture capital or private equity funds, partners, retired partners, members, retired members, managers, retired managers, managing members, retired managing members and stockholders of such Holder, or the estates and family members of any such partners or retired partners, members and retired members, managers and retired managers, managing members and retired managing members, and any trusts for the benefit of any of the foregoing Persons shall be deemed to be a single selling Holder.
(iii) If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall be excluded therefrom by written notice from the CompanyCorporation, the underwriter underwriter, the Initiating Holders under Section 2.1(a), or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationHolders under Section 2.1(b). Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registrationregistration unless such registration is a Registration Statement filed on a Form S-3 providing for an offering of securities on a continuous basis. If shares Shares are so withdrawn from the registration and or if the number of shares Shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e)(ii), then the Company Corporation shall then offer to all Holders that who have retained rights to include securities Shares in the registration the right to include additional Registrable Securities Shares in the registration in an aggregate amount equal to the number of shares Shares so withdrawnwithdrawn or reduced, with such shares Shares to be allocated among such Holders requesting additional inclusion, inclusion as set forth abovein Section 2.1(e)(ii).
Appears in 2 contracts
Sources: Registration Rights Agreement (OneStream, Inc.), Registration Rights Agreement (OneStream, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section SECTION 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company and reasonably acceptable to a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion;(ii) second, to the Other Selling Stockholders; and (iiiii) secondthird, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Doximity, Inc.), Investors’ Rights Agreement (Doximity, Inc.)
Underwriting. If (a) For so long as a Holder holds Registrable Securities, such Holder may request by giving written notice (an “Underwriting Request”) to the Initiating Holders intend Company that an offering permitted under Section 1.1(a) shall be in the form of an underwritten offering (each, an “Underwritten Offering”); provided, however, that in the case of each such Underwritten Offering, such Holder will be entitled to distribute make such demand only if the proceeds from the sale of Registrable Securities covered by their request by means in the offering (before the deduction of an underwritingunderwriting discounts) is reasonably expected to exceed, they shall so advise in the Company as a part of their request made pursuant to this Section 2.1 and aggregate, twenty million dollars ($20,000,000); provided, further that the Company shall include such information in not be obligated to effect more than two (2) Underwritten Offerings during any twelve (12) consecutive month period and shall not be obligated to effect an Underwritten Offering within one hundred twenty (120) days after the written notice given pursuant to Section 2.1(a)(i). In such event, pricing of a previous Underwritten Offering.
(b) All Underwriting Requests shall specify the right approximate number of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to be sold in the extent provided herein. If Underwritten Offering and the Company shall request inclusion in expected price range (net of underwriting discounts and commissions) of such Underwritten Offering.
(c) With respect to any registration pursuant to Section 2.1 of securities being sold for its own accountsuch Underwritten Offering, the Initiating Holders shallHolder making the request shall select an investment banking firm of international standing to be the managing underwriter for the offering, on behalf of all Holders, offer to include such securities in the underwriting and such offer which firm shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any The Company will enter into and perform its obligations under an underwriting agreement with the underwriters for such Underwritten Offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article III and the provision of this Section 2.1opinions of counsel and accountants’ letters as are customarily delivered by issuers to underwriters in secondary underwritten public offerings of securities. The Holders shall be a party to any such underwriting agreement and the representations and warranties by, if and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such Holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offerings, and the Holders shall be required to make representations or warranties to, and other agreements with, the Company and the underwriters advise in connection with such underwriting agreement as are customarily made by selling stockholders in secondary underwritten public offerings; provided, however, that the Initiating Holders shall not be required to make any representations or warranties to the Company or the underwriters regarding such Holder’s knowledge about the Company or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in writing Article III), or to the underwriters with respect thereto, except to the extent of the indemnification being given to the Company and its controlling Persons in Article III.
(d) If (i) the managing underwriter for such Underwritten Offering advises the Company or (ii) the Company concludes, after consulting with its independent financial advisor (which shall be an investment banking firm of international standing), in either case, that marketing factors require a limitation on in its opinion the number of shares Registrable Securities requested to be underwritten, included in such Underwritten Offering exceeds the number of Registrable Securities that may can be so included sold in an orderly manner in such offering within a price range acceptable to the Holders, the Company shall be allocated as follows: (i) first, among all Holders requesting to include in such Underwritten Offering the number of each Holder’s Registrable Securities which in the opinion of such registration statement based on managing underwriter or the pro rata percentage Company’s independent financial advisor, as applicable, can be sold in an orderly manner within the price range of Registrable Securities held by such Holders on offering.
(e) Unless the managing underwriter otherwise agrees, each Holder agrees not to effect any public sale or private offer or distribution of any shares of Company Common Stock or any other issue being registered or a Fully Diluted basis; and (ii) second, to similar security of the Company, which or any securities convertible into or exchangeable or exercisable for such securities, during the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree fourteen (14) days prior to the terms anticipated effectiveness under the Securities Act of any underwritten registration of any such underwritingsecurities (or with respect to an underwritten takedown of any such securities under a shelf registration, prior to the pricing of such person shall be excluded therefrom by written notice from offer) and during such time period (not to exceed one hundred eighty (180) days) after the Companyeffectiveness under the Securities Act of any underwritten registration (or, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares with respect to be included in such registration was previously reduced as a result of marketing factors an underwritten offering pursuant to this Section 2.1(d)a shelf registration statement, then after the pricing of such offering) as the Company shall then offer to all Holders that have retained rights to include securities in and the managing underwriter may agree (except as part of such underwritten registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusionor offering, as set forth aboveapplicable).
Appears in 2 contracts
Sources: Registration Rights Agreement (Approach Resources Inc), Exchange Agreement (Approach Resources Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 9.5 and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(i)in subsection 9.5(a)(i) above. In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 9.5 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. If officers or directors of the Company holding other securities of the Company shall request inclusion in any registration pursuant to this Section 2.1 9.5, or if holders of securities being sold for its own accountof the Company who are entitled, by contract with the Company, to have securities included in such registration (the "Other Shareholders") request such inclusion, the Initiating Holders shall, on behalf of all Holders, offer to include the securities of such securities officers, directors and Other Shareholders in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further all applicable provisions of this Section 2 (including Section 2.10)9. The Company shall (together with all Holders, officers, directors and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.19.5, if the representative of the underwriter or underwriters advise advises the Initiating Holders in writing that marketing factors require make it advisable to impose a limitation on the number of shares to be underwritten, the securities of the Company (other than Registrable Securities) held by officers or directors of the Company and by Other Shareholders shall be excluded from such registration to the extent so required by such limitation and if a limitation of the number of shares is still required, the Initiating Holders shall so advise all Holders of Registrable Securities whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all such Holders requesting in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to persons at the Company, which time of filing the Company may allocate, at its discretion, for its own account, registration statement. No Registrable Securities or for any other securities excluded from the account of other holders or employees underwriting by reason of the Companyunderwriter's marketing limitation shall be included in such registration. If a person who has requested inclusion in such registration as provided any Holder of Registrable Securities, officer, director or Other Shareholder above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded party may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any If the underwriter has not limited the number of Registrable Securities or other securities excluded or withdrawn from to be underwritten, the Company may include its securities for its own account in such underwriting shall also be withdrawn from such registration. If shares are registration if the underwriter so withdrawn from the registration agrees and if the number of shares to be Registrable Securities and other securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to and underwriting will not thereby be allocated among such Holders requesting additional inclusion, as set forth abovelimited.
Appears in 2 contracts
Sources: Series a Preferred Stock and Warrant Purchase Agreement (Visalia Trust), Series a Preferred Stock and Warrant Purchase Agreement (Telantis Venture Partners v Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities Securities, Other Shares and Company Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders; and (ii) second, to the Other Selling Stockholders requesting to include Other Shares in such registration statement based on the pro rata percentage of Other Shares held by such Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Via Transportation, Inc.), Registration Rights Agreement (Via Transportation, Inc.)
Underwriting. If any of the Initiating Holders intend to distribute the Registrable Transfer Restricted Securities covered by their request any Shelf Registration Statement are to be sold in an underwritten offering, the investment banker(s) and manager(s) that will manage the offering will be selected by means the Holders of an underwriting, they shall so advise a majority of the then outstanding Transfer Restricted Securities (determined in accordance with Section 10(d)) included in such offering (after consultation with the Company as a part of their request made pursuant to this Section 2.1 such selection and the Company shall include such information in upon the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion consent of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10, which consent shall not be unreasonably withheld or delayed). The If requested by the underwriters, the Company shall (together with all Holders) will promptly enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the CompanyCompany with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and conditions as are customary for underwriting agreements with respect to secondary offerings, including without limitation, indemnities to the effect and to the extent provided in Section 8 hereof. Notwithstanding The Holders on whose behalf such securities are being distributed shall be party to any other provision of this Section 2.1, if such underwriting agreement. Such Holders shall not be required by the Company to make any representations or warranties to the underwriters advise with respect to the Initiating Company or the Transfer Restricted Securities (other than that the Holders are conveying such securities free and clear of all pledges, security interests, liens, charges, encumbrances, agreements, equities, claims and options of whatever nature), and the Holders shall not be required to indemnify the Company or the underwriters (other than with respect to the matters, and to the extent, provided in writing that marketing factors require a limitation Section 8). Furthermore, the Company shall make available for inspection by the Holders, any underwriter participating in any disposition pursuant to such Shelf Registration Statement, and any attorney, accountant or other agent retained by any Holder or underwriter, all financial and other records and other information, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibilities. No Holder may participate in any underwritten distribution hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the number of shares to be underwrittenbasis provided in any underwriting arrangements approved in accordance with the terms hereof, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (iib) secondcompletes and executes all questionnaires, to the Companypowers of attorney, which the Company may allocateindemnities, at its discretion, for its own account, or for the account of underwriting agreements and other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to documents required under the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth abovearrangements.
Appears in 2 contracts
Sources: Registration Rights Agreement (Trans World Airlines Inc /New/), Registration Rights Agreement (Trans World Airlines Inc /New/)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i)) . In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company, which underwriters are reasonably acceptable to a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Shareholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Shareholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Shareholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors' Rights Agreement, Investors’ Rights Agreement (Ambarella Inc)
Underwriting. If the Initiating Holders intend to distribute Unless the Registrable Securities covered may be registered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such eventon Form S‑3, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company, which underwriters are reasonably acceptable to a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Ceribell, Inc.), Investors’ Rights Agreement (Ceribell, Inc.)
Underwriting. If the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration intend to distribute the Registrable Securities covered by their request demand by means of an underwritingunderwritten offering, they shall so advise the Company as a part of their request demand made pursuant to this Section 2.1 2.4, and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i2.4(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2.4 shall be conditioned upon such Holder’s participation in such underwriting underwritten offering and the inclusion of such Holder’s Registrable Securities in the underwritten offering to the extent provided herein. If the The Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf together with all participating Holders and participating Third Party Holders of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation Registrable Securities of the Company in (if any) proposing (and permitted) to distribute their securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) underwritten offering, enter into an underwriting agreement in customary form (containing such representations and warranties by the Company and such other terms as are generally prevailing in agreements of that type) with the representative of the managing underwriter or underwriters selected for by the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration. The Demand Participating Sponsor Holders shall cooperate with the Company in the negotiation of such underwriting by a majority in interest agreement and shall give consideration to the reasonable suggestions of the Company regarding the form thereof. Such underwriting agreement shall contain such representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of the Holders and Third Party Holders party thereto as are customarily made by issuers to selling stockholders in secondary underwritten public offerings. No Holder or Third Party Holder shall be entitled to participate in such underwritten offering unless such Holder or Third Party Holder, as the case may be, completes and executes all questionnaires, powers of attorney, indemnities and other documents required under the terms of such underwriting agreement. All reasonable out-of-pocket costs and expenses incurred by the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration in connection with such underwritten offering (to the extent not paid or reimbursed by Company) shall be borne on a pro rata basis in accordance with the number of Registrable Securities being sold by each of the Holders, which underwriters are reasonably acceptable to Third Party Holders and/or the CompanyCompany in such underwritten offering. Notwithstanding any anything other provision of this Section 2.12.4, and subject to the “cutback” provisions in Section 2.5(b) (only if the applicable registration is effected in connection with an IPO), if the managing underwriter or underwriters of a proposed underwritten offering of the Registrable Securities included in a Demand Registration shall advise the Company and the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration that the number of securities requested to be included in writing such Demand Registration exceeds the number which can be sold in such offering without being likely to have an adverse effect on the price, timing or distribution of the securities offered or the market for the securities offered, then the Company shall so advise all Holders and Third Party Holders of Registrable Securities that marketing factors require a limitation on have requested to participate in such Demand Registration (other than the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration), and the number of shares to be underwritten, the number of Registrable Securities that may be so included in such Demand Registration (1) first, shall be allocated as follows: (i) firstpro rata among the Demand Participating Sponsor Holders, among all Management Holders requesting and the Temasek Holders that have requested to include Registrable Securities participate in such registration statement Demand Registration based on the pro rata percentage relative number of Registrable Securities then held by each such Demand Participating Sponsor Holder, Management Holder and Temasek Holder (provided, that any securities thereby allocated to such a Demand Participating Sponsor Holder, Management Holder or Temasek Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Demand Participating Sponsor Holders, Management Holders on a Fully Diluted basis; and the Temasek Holders in like manner), (ii2) second, and only if all the securities referred to in clause (1) have been included in such Demand Registration, pro rata among the Companyother Holders that have requested to participate in such Demand Registration based on the relative number of Registrable Securities then held by each such Holder (provided, which that any securities thereby allocated to such Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), (3) third, and only if all of the securities referred to in clause (2) have been included in such Demand Registration, the number of securities that the Company may allocateproposes to include in such Demand Registration that, at its discretion, for its own account, or for in the account of other holders or employees opinion of the Company. If a person who has requested managing underwriter or underwriters, can be sold without having such adverse effect and (4) fourth, and only if all of the securities referred to in clause (3) have been included in such Demand Registration, any other securities eligible for inclusion in such registration as provided above does not agree to the terms Demand Registration (including those of any Third Party Holder) that, in the opinion of the managing underwriter or underwriters, can be sold without having such underwritingadverse effect; provided, such person shall be excluded therefrom by written notice from that notwithstanding the Companyforegoing, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any shares of Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to that may be included in such registration was previously reduced Demand Registration shall be subject to the Priority Sell-Down. No Registrable Securities excluded from the underwritten offering by reason of the managing underwriter’s or underwriters’ marketing limitation shall be included in such Demand Registration. Notwithstanding the delivery of any notice of a Demand Registration, all determinations as a result to whether to complete any Demand Registration and as to the timing, manner, price and other terms and conditions of marketing factors any Demand Registration shall be at the sole discretion of the Demand Initiating Sponsor Holders that initiated the applicable Demand Registration. Each of the Holders agrees to reasonably cooperate with each of the other Holders to establish notice, delivery and documentation procedures and measures to facilitate such other Holder’s participation in future potential Demand Registrations pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above2.4.
Appears in 2 contracts
Sources: Registration Rights Agreement (Dell Technologies Inc), Registration Rights Agreement (Denali Holding Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 hereof of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1 hereof, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.102.10 hereof). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Allakos Inc.), Investors’ Rights Agreement (Allakos Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Phaserx, Inc.), Investors’ Rights Agreement (Phaserx, Inc.)
Underwriting. If (i) If, pursuant to Section 2.1(a) the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.1(a). In such event, the right of any Holder to include all or any portion of its Registrable Securities The managing underwriter in connection with a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration requested pursuant to Section 2.1 2.1(a) will be selected by the Company, subject only to the reasonable approval of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and Stockholders. Each Specified Stockholder exercising its acceptance of the further applicable provisions of this rights under Section 2 (including Section 2.10). The Company shall 2.1(b) (together with all Holdersthe Company) shall enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersStockholders and such other documents reasonably required under such agreement. Notwithstanding the foregoing, which underwriters are reasonably acceptable with respect to the Company. Notwithstanding underwriting agreement or any other provision of this Section 2.1documents reasonably required under such agreement, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting no Specified Stockholder shall be required to include Registrable Securities in such registration statement based make any representation or warranty with respect to or on behalf of the pro rata percentage Company or any other stockholder of Registrable Securities held by such Holders on a Fully Diluted basis; the Company and (ii) second, the liability of each Specified Stockholder shall be limited as provided in Section 2.6(b).
(ii) The managing underwriter in connection with a registration requested pursuant to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of Section 2.1(b) will be selected by the Company. If a person who has requested inclusion Each Specified Stockholder exercising its rights under Section 2.1(b) (together with the Company) shall enter into an underwriting agreement in customary form with the managing underwriter selected for such registration underwriting by the Company and such other documents reasonably required under such agreement. Notwithstanding the foregoing, with respect to the underwriting agreement or any other documents reasonably required under such agreement, (i) no Specified Stockholder shall be required to make any representation or warranty with respect to or on behalf of the Company or any other stockholder of the Company and (ii) the liability of each Specified Stockholder shall be limited as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.6(b), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (AutoTrader Group, Inc.), Stockholders Agreement (AutoTrader Group, Inc.)
Underwriting. If the Initiating Holders intend to distribute the ------------ Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 paragraph 2 hereof and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i2(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder with respect to such participation and inclusion) to the extent provided herein. A Holder may elect to include in such underwriting all or a part of the Registrable Securities it holds. If officers or directors of the Company holding other securities of the Company shall request inclusion in any registration pursuant to this Section 2.1 of securities being sold for its own account2, or if Other Shareholders request such inclusion, the Initiating Holders shall, on behalf of all Holders, offer to include the securities of such securities officers, directors and Other Shareholders in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)Agreement. The Company shall (together with all Holders, officers, directors and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.12, if the underwriters advise representative of the underwriter advises the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the securities of the Company held by officers or directors (other than Registrable Securities) of the Company shall be excluded from such registration to the extent so required by such limitation and if a limitation of the number of shares is still required, the Initiating Holders shall so advise all Other Shareholders whose securities would otherwise be included pursuant to the request described herein, and the number of other securities that may be included in the registration and underwriting shall be allocated among all such Other Shareholders in proportion, as nearly as practicable, to the respective amounts of securities which they had requested to be included. If a limitation of the number of shares is still required, the Initiating Holders shall so advise all Holders whose Registrable Securities would otherwise be included pursuant to the request described herein, and the number of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all such Holders requesting in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held which they had requested be included. No Registrable Securities or any other securities excluded from the underwriting by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees reason of the Companyunderwriter's marketing limitation shall be included in such registration. If a person any Holder of Registrable Securities, officer, director or Other Shareholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders. The securities so excluded held by such person shall also then be withdrawn from registration. Any If the underwriter has not limited the number of Registrable Securities or other securities excluded or withdrawn from to be underwritten, the Company may include its securities for its own account in such underwriting shall also be withdrawn from such registration. If shares are registration if the underwriter so withdrawn from the registration agrees and if the number of shares to be Registrable Securities and other securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveand underwriting has not thereby been limited.
Appears in 2 contracts
Sources: Registration Rights Agreement (Telaxis Communications Corp), Registration Rights Agreement (Millitech Corp)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the CompanyCompany and the Other Selling Stockholders, which based on any agreements the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Companyhas with such Other Selling Stockholders. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders Holders, the Company and the Other Selling Stockholders requesting additional inclusion, inclusion as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (eASIC Corp), Investors’ Rights Agreement (eASIC Corp)
Underwriting. If In the event that a registration pursuant to Section 2.1 is for a registered public offering involving an underwriting requested by the Initiating Holders intend to distribute Holders, the Registrable Securities covered by their request by means of an underwriting, they Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such the underwriting arrangements required by this Section 2.1, and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative managing underwriter of the underwriter or underwriters recognized national standing selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Company and reasonably acceptable to the CompanyHolders holding a majority of the Registrable Securities proposed to be distributed by the Holders through such underwriting. Notwithstanding any other provision of this Section 2.1, if the managing underwriter or underwriters advise advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that were proposed to be in the registration and notwithstanding anything in Section 2.2 to the contrary, the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all Holders requesting thereof in proportion, as nearly as practicable, to include the respective amounts of Registrable Securities requested to be included by such Holders at the time of filing the registration statement; provided, that all Registrable Securities under this Section 2.1 shall be included in such registration statement based on before any other shares are included pursuant to Section 2.2 or otherwise. No Registrable Securities excluded from the pro rata percentage underwriting by reason of the underwriter’s marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities held disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by such Holders on a Fully Diluted basis; and (ii) second, written notice to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or and the Initiating Holders. The Registrable Securities and/or other securities so excluded withdrawn shall also be withdrawn from registration. Any , and such Registrable Securities or other securities excluded or withdrawn from such underwriting shall also not be withdrawn from transferred in a public distribution prior to 90 days after the effective date of such registration, or such other shorter period of time as the underwriters may require. If shares are so withdrawn from **** Certain information has been omitted and filed separately with the registration Securities and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal Exchange Commission. Confidential treatment has been requested with respect to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveomitted portions.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Yodlee Inc)
Underwriting. (i) If the Initiating Holders intend to distribute registration for which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.2(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2.2 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the Other Selling Stockholders with registration rights to participate therein distributing their securities through such underwriting) shall enter into an underwriting agreement in customary form with the representative representative(s) of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Company and reasonably acceptable to the Company. Holders holding a majority of the Registrable Securities held by the Holders that are proposed to be included in such underwriting, and shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents as may be customary and reasonably requested by the managing underwriters or as required under the terms of such underwriting arrangements; provided that no Holder of Registrable Securities or other Persons (other than the Company and its subsidiaries) included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such Holder or other Person, such Holder’s or other Person’s title to ownership of the securities, such Holder’s or other Person’s power and authority, such Holder’s or other Person’s intended method of distribution (including representations regarding price stabilization or manipulation) and such other representations and warranties personal to such Holder or other Person, if any, as may be customary under the circumstances) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise specifically provided in Section 2.5, or to agree to any lock-up or holdback restrictions, except as otherwise specifically provided in Section 2.9.
(ii) Notwithstanding any other provision of this Section 2.12.2, if the underwriters advise the Initiating Holders Company in writing that marketing factors require a limitation on the number of shares to be underwritten, the Company and the underwriters may (subject to the limitations set forth below) limit the number of Registrable Securities and Other Shares to be included in the registration and underwriting. The Company shall so advise all Holders and Other Selling Stockholders requesting registration, and the number of shares of securities that may are entitled to be so included in the registration and underwriting shall be allocated allocated, as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; Company for securities being sold for its own account (if any), and (ii) second, to the Company, which Holders and Other Selling Stockholders requesting to include Registrable Securities and/or Other Shares in such registration statement pro rata based on the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees percentage of the Company. Registrable Securities and/or Other Shares held by each of them.
(iii) If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall also be excluded therefrom by written notice from the Company, Company or a representative of the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationunderwriter(s). Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Stockholders' Agreement (PCF 1, LLC), Merger Agreement (Neulion, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in such a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Side Letter Agreement (Juno Therapeutics, Inc.), Side Letter Agreement (Juno Therapeutics, Inc.)
Underwriting. (a) If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives notice is for an offering involving an underwriting, they the Company shall so advise the Company Investor as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i3.1(a). In such event, the right of any Holder the Investor to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 Article 3 shall be conditioned upon such Holder’s the Investor's participation in such underwriting and the inclusion of such Holder’s the Investor's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company Investor shall (together with all Holdersthe Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest the Company; provided, however, that the liability of the Initiating Holders, which underwriters are reasonably acceptable Investor shall be limited to an amount equal to the Company. net proceeds from the offering received by the Investor.
(b) Notwithstanding any other provision of this Section 2.1Article 3, if the underwriters advise the Initiating Holders in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the Company shall so advise the Investor, and the number of Registrable Securities that may shares of Common Stock to be so included in such registration shall be allocated as follows: (i) first, among for the account of the Company, all Holders requesting shares of Common Stock proposed to include Registrable Securities in such registration statement based on be sold by the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisCompany; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of the Investor and any other holders or employees shareholders of the CompanyCompany participating in such registration, the number of shares of Common Stock requested to be included in the registration by the Investor and such other shareholders in proportion, as nearly as practicable, to the respective number of shares that are proposed to be offered and sold by the Investor and such other shareholders at the time of filing the registration statement. No Registrable Securities or other shares of Common Stock excluded from the underwriting in this Article 3 by reason of the underwriters' marketing limitation shall be included in such registration.
(c) The Company shall so advise the Investor and the other shareholders distributing their securities through such underwriting of any such limitation and the number of shares that may be included in the registration. If a person who has requested inclusion in such registration as provided above does not agree to the Investor disapproves of the terms of any such underwriting, such person shall be excluded the Investor may elect to withdraw therefrom by written notice from to the Company, Company and the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationmanaging underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the .
(d) The Company shall then offer to all Holders that have retained rights to include securities in the registration the right to terminate or withdraw any registration initiated by it under this Article 3 prior to the effectiveness of such registration, whether or not the Investor has elected to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveregistration.
Appears in 2 contracts
Sources: Registration Rights Agreement (Newcastle Partners L P), Registration Rights Agreement (Hallmark Financial Services Inc)
Underwriting. If the Initiating one or more Holders intend propose to distribute the Registrable Securities covered by their request by means of conduct an underwritingUnderwritten Offering under a Mandatory Shelf Registration Statement, they such Holder(s) shall so advise give notice to the Company as a part and all other Holders whose securities are included in the Mandatory Shelf Registration Statement of their request made pursuant the managing underwriters for such proposed Underwritten Offering, such managing underwriters to this Section 2.1 and be selected by the Company subject to the approval of the participating Holder(s), not to be unreasonably withheld; provided, however, that the Company shall not be required to offer such opportunity to the Holders if the participating Holder(s) do not offer a minimum of an aggregate $50 million of Registrable Shares (determined by multiplying the number of Registrable Shares held by the participating Holder(s) by the average of the closing price on the NYSE for the Common Stock for the ten trading days preceding the date of such notice). If, at any time, an Underwritten Offering shall be undertaken at the request of one or more Holders, each other Holder shall be offered the opportunity to register such amount of Registrable Securities as each such Holder may request on the same terms and conditions as the requesting Holder or Holders. The Company shall include in such information in Underwritten Offering all Registrable Shares for which the Company or any requesting Holder have received written requests for inclusion; provided that such written request for inclusion is delivered within five (5) Business Days after the date of delivery of the notice given of the Underwritten Offering pursuant to the first sentence of this Section 2.1(a)(i2(a)(ii). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative managing underwriters, which shall include, among other provisions, indemnities to the effect and to the extent provided in Section 6, and shall take all such other reasonable actions as are requested by the managing underwriter in order to expedite or facilitate the registration and disposition of the underwriter or Registrable Shares included in such Underwritten Offering. All Holders proposing to distribute their Registrable Shares through such Underwritten Offering shall enter into an underwriting agreement in customary form with the managing underwriters selected for such underwriting by a majority in interest and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the Initiating Holdersterms of such underwriting, which underwriters are reasonably acceptable and furnish to the CompanyCompany such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, that a Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties or agreements as are customary for selling stockholders and reasonably requested by the underwriters; provided, further, that any representations, warranties or agreements made by any Holder shall be several and not joint. Notwithstanding any other provision of this Section 2.1Agreement, if the managing underwriters advise the Initiating Holders determine in writing good faith that marketing factors require a limitation on the number of shares to be underwrittenincluded in such Underwritten Offering, then the managing underwriters may exclude shares (including Registrable Shares) from the Underwritten Offering, and any shares included in the Underwritten Offering shall be allocated to each of the Holders requesting inclusion of their Registrable Shares in such Underwritten Offering on a pro rata basis based on the total number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities Shares then held by each such Holders on a Fully Diluted basis; and (ii) second, to the Company, Holder which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders is requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Registration Rights Agreement (Halcon Resources Corp), Registration Rights Agreement (Ares Management LLC)
Underwriting. If the Initiating Holders intend request that an offering to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made be registered pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event2.3 be underwritten, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 such registration shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 2.3 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.3, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and and, if the Initiating Holders had requested that such offering be underwritten, such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.102.7). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting underwriting. The underwriters for any offering to be registered pursuant to this Section 2.3 shall be selected by a majority in interest the Initiating Holders (subject to the consent of the Initiating HoldersCompany, which underwriters are reasonably acceptable to the Companysuch consent shall not be unreasonably withheld, conditioned or delayed). Notwithstanding any other provision of this Section 2.12.3, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration, except in the case of a Shelf Registration Statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration, except in the case of a Shelf Registration Statement. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.3(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Investors’ Rights Agreement, Investors’ Rights Agreement (Sonos Inc)
Underwriting. If the Initiating Holders intend to distribute the ------------ Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 5(a) and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i5(a)(x). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 5 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent requested and to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative managing underwriter which managing underwriter shall be selected by the Company. Upon the request of such underwriter, the underwriter or underwriters selected for Company agrees to provide all necessary cooperation in connection with such underwriting by a majority including participation in interest meetings, due diligence sessions, road shows, the preparation of prospectuses and similar documents, and the Initiating Holders, which underwriters are reasonably acceptable to the Companypreparation and delivery of customary certificates or documents. Notwithstanding any other provision of this Section 2.15, if the underwriters advise managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then, subject to the provisions of Section 5(a), the Company shall so advise all Holders and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as followsamong all Holders requesting inclusion in the following priority: (i) first, among the Common Stock (other than shares as to which any person holds contractual rights to inclusion) held by all persons other than the Holders requesting to include Registrable Securities in shall first be excluded from such registration statement based on and underwriting to the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisextent required; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account if a limitation of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced and underwriting is still required, such limitation shall be allocated among the Holders (including the Initiating Holders), in proportion, as nearly as practicable, to the respective amounts of securities contractually entitled to inclusion (determined without regard to any requirement of a result request to be included in such registration) in such registration held by all such Holders at the time of filing the registration statement. No Registrable Securities excluded from the underwriting by reason of the managing underwriter's marketing factors limitation shall be included in such registration. If any Holder proposing to participate in an underwriting pursuant to this Section 2.1(d5(b) disapproves of the terms of such underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, the managing underwriter and the Initiating Holders. The Registrable Securities and/or other securities so withdrawn shall also be withdrawn from registration; provided, however, that if by the withdrawal of such Registrable Securities a greater number of Registrable Securities held by other Holders may be included in such registration (up to the maximum of any limitation imposed by the underwriters), then the Company shall then offer to all Holders that who have retained rights to include securities included Registrable Securities in the registration the right to include additional Registrable Securities in the same proportion used in determining the underwriter limitation in this Section 5(b). If the registration in an aggregate amount equal does not become effective due to the number withdrawal of shares so withdrawnRegistrable Securities, with such shares to be allocated among such then either (1) the Holders requesting additional inclusion, registration shall reimburse the Company for expenses incurred in complying with the request or (2) the aborted registration shall be treated as set forth aboveaffected for purposes of Section 5(a)(B) and Section 9.
Appears in 2 contracts
Sources: Stockholders' Rights Agreement (Netflix Com Inc), Stockholders' Rights Agreement (Netflix Com Inc)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i1.3(A)(1). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 1.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities Common Stock, in the case of a Company offering of Common Stock, or Registrable Exchangeable Shares, in the case of an Exchangeco offering of Exchangeable Shares, to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company or Exchangeco, as the case may be, and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority the Company or Exchangeco, as the case may be; provided, however, that no Holder participating in interest such underwriting shall be required to make any representation or warranty except with respect to such Holder and its intended method of distribution, and that the Initiating Holders, which underwriters are reasonably acceptable liability of such Holder shall be limited to an amount equal to the Companynet proceeds from such underwriting received by such Holder. Notwithstanding any other provision of this Section 2.1Agreement, if the underwriters advise managing underwriter advises the Initiating Holders in writing Company or Exchangeco, as the case may be, that marketing factors require a limitation on of the number of shares to be underwritten, then the number of underwriter may exclude some or all Registrable Securities that may be so included from such registration and underwriting; provided, however, that, subject to the next sentence, any such limitation or "cutback" shall be allocated as follows: (i) first, among first applied to all Holders requesting shares proposed to include Registrable Securities be sold in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and offering (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or other than for the account of other holders the Company or employees Exchangeco, as the case may be), which are not Registrable Securities or Philips Registrable Securities; (ii) then applied to the Registrable Securities of Holders and Philips Registrable Securities, if applicable. In the event that the number of shares of Registrable Securities and Philips Registrable Securities, if applicable, to be included in a registration shall be limited pursuant to the foregoing, the Company or Exchangeco, as the case may be, shall so advise all Holders and Philips, if applicable, and the number of shares of Registrable Securities and Philips Registrable Securities, if applicable, that may be included in the registration and underwriting shall be allocated among all Holders and Philips, if applicable, in proportion, as nearly as practicable, to the respective amounts of Registrable Securities and Philips Registrable Securities, if applicable, requested to be included. Notwithstanding the preceding sentence, if such registration is a Philips Demand Registration, no Philips Registrable Securities shall be excluded from such registration pursuant to any underwriter limitation or cutback unless and until all Registrable Securities have been so excluded from such registration. No Registrable Securities excluded from the underwriting by reason of the Companyunderwriters marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or Exchangeco, as the case may be, or the underwriters may round the number of shares allocated to any Holder to the nearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall be excluded it may elect to withdraw therefrom by written notice from to the CompanyCompany or Exchangeco, as the underwriter or case may be, and the Initiating Holders. The securities so excluded shall also be withdrawn from registrationmanaging underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration, and shall not be transferred in a public distribution prior to one hundred and twenty (120) days after the effective date of the registration statement relating thereto, or such other shorter period of time as the underwriters may require. If shares are so withdrawn from by the registration and if the withdrawal of such Registrable Securities a greater number of shares to Registrable Securities held by other Holders may be included in such registration was previously reduced as a result (up to the maximum of marketing factors pursuant to this Section 2.1(dany limitation then imposed by the underwriter), then the Company or Exchangeco, as the case may be, shall then offer to all Holders that Holders, if any, whose shares have retained rights to include securities in been excluded from the registration by the terms of this Section 1.3(B), the right to include additional Registrable Securities in the registration same proportion used in an aggregate amount equal determining the underwriter limitation in this Section 1.3(B) up to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth abovelimitation then imposed by the underwriter.
Appears in 2 contracts
Sources: Registration Rights Agreement (Furukawa Electric Co LTD), Registration Rights Agreement (JDS Uniphase Corp /Ca/)
Underwriting. If the Initiating Holders intend to distribute registration for which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to this Section 2.1 of securities being sold for its own account, or if other Persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other Persons in such underwriting and the inclusion of the Company’s and such Person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.102.10 (Market Stand-Off Agreement)). The Company shall (together with all HoldersHolders and other Persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above. For purposes of this Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in this Section 2.1(d), fewer than fifty percent (50%) of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Aardvark Therapeutics, Inc.), Investors’ Rights Agreement (Aardvark Therapeutics, Inc.)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i5.2(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 5.2 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the other Holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.15.2, if the underwriters advise the Initiating Holders in writing managing underwriter determines that marketing factors require a limitation of the number of shares to be underwritten, the managing underwriter may limit the Registrable Securities to be included in such registration (i) in the case of the Company's initial public offering, to zero, and (ii) in the case of any other offering, to an amount no less than 33-1/3% of all shares to be included in such offering. The Company shall so advise all Holders requesting to be included in the registration and underwriting and the number of shares of Registrable Securities that may be included in the registration and underwriting shall be allocated among all the Holders requesting to be included in the registration and underwriting in proportion, as nearly as practicable, to the respective amounts of Registrable Securities held by them at the time of filing the registration statement, provided, however, that in the event of such limitation on the number of shares to be underwritten, the number then no shares of Registrable Securities that may be so included Founder's Stock shall be allocated as follows: (i) first, among included unless all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage shares of Registrable Securities held requested by the Holders other than the Founders to be included in such Holders on a Fully Diluted basis; and (ii) secondunderwriting are so included. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Companynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 2 contracts
Sources: Registration and Information Rights Agreement (Callidus Software Inc), Registration and Information Rights Agreement (Callidus Software Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If if the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and Holders, assuming conversion (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company; provided that the number of Registrable Securities proposed to be registered by such Holders shall not be reduced below twenty-five percent (25%) of the shares to be underwritten. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Satsuma Pharmaceuticals, Inc.)
Underwriting. If the Initiating Holders Major Holder requesting registration under this SECTION 2.2 intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 SECTION 2.2(A), and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(iin SECTION 2.2(A). In such event, the right of any Holder to include all or any portion of its such Holder's Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 SECTION 2.2(A) of securities being sold for its own account, the Initiating Major Holders shall, on behalf of all Holders, offer to include such securities in the underwriting underwriting, and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10)'s securities. The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the Companyinitiating Holders, unless the Company itself shall be the selected underwriter, in which case the consent of the Holders shall not be required. Notwithstanding any other provision of this Section 2.1SECTION 2.2, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Company securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement Registration Statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion or exercise; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Major Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Investors' Rights Agreement (Merriman Curhan Ford Group, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant notices referred to Section 2.1(a)(iin Sections 2.1(a) and 2.1(b). In such event, the right of any Holder or the Common Holders to include all or any portion of its Registrable their Subject Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s or such Common Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable or such Common Holder’s Subject Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders and the Common Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such other person’s securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and the Common Holders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are managing underwriter(s) shall be reasonably acceptable to Initiating Holders holding at least a majority of the CompanyRegistrable Securities held by such Initiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters managing underwriter(s) advise the Initiating Holders Company in writing that (i) marketing factors require a limitation on the number of shares to be underwritten, or (ii) the number of Registrable Securities that may shares proposed to be so included in the registration would reduce the offering price per share, then the number of shares to be included in the registration and underwriting shall be allocated as follows: (i) first, first among all Holders requesting who indicated to include the Company their decision to distribute any of their Registrable Securities through such underwriting, in such registration statement based on proportion, as nearly as practicable, to the pro rata percentage respective numbers of shares of Registrable Securities held owned by such Holders on a Fully Diluted basis; at the time of filing the registration statement, then, if all such Registrable Securities have been included in the underwriting, to the Common Holders who have indicated to the Company their decision to distribute any of their Subject Securities (not otherwise constituting Registrable Securities) through such underwriting, in proportion, as nearly as practicable, to the number of shares of Subject Securities owned by the Common Holders at the time of filing the registration statement, and (ii) secondthe remainder, if any, to the Company, which . No stock excluded from the Company may allocate, at its discretion, for its own account, or underwriting by reason of managing underwriter(s)’ marketing limitation shall be included in such registration. In no event shall Registrable Securities be excluded from such registration unless all other stockholders’ securities and securities for the account of other holders or employees of the CompanyCompany have been first excluded. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter managing underwriter(s) or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Subject Securities or other securities Securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(f), then the Company shall then offer to all Holders, and thereafter to the Common Holders that who have retained rights to include securities in the registration registration, the right to include additional Registrable Subject Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated first among such Holders requesting additional inclusion, as set forth above, and thereafter to the Common Holders, as set forth above.
Appears in 1 contract
Sources: Investor Rights Agreement (Smith Electric Vehicles Corp.)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives ------------ notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i6(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 6 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant Each Holder proposing to Section 2.1 of distribute its securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the other holders distributing their securities through such underwriting) enter into and perform such Holder's obligations under an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.16, if the underwriters advise managing underwriter provides written notice to the Initiating Holders in writing that marketing it has determined that market factors require a limitation on the number of shares to be underwrittenincluded in such registration, the managing underwriter shall include in the offering the maximum number of Registrable Securities shares that may be so included in the offering consistently with such market factors and shall be allocated allocate such included shares as follows: :
(i) first, among all Holders requesting the shares requested to include Registrable Securities in such be sold by the Company for its own account or the holder of securities initiating the registration statement based on under demand registration rights granted by the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisCompany; and (ii) second, on a pro rata basis among the holders thereof, the shares requested to be included in the offering by the Holders and the shares requested to be included in the offering pursuant to piggyback registration rights granted by the Company; and (iii) third, any other shares requested or proposed by the Company to be included for resale. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder or other holder to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Companynearest 100 shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or other holder disapproves of the terms of any such underwriting, such person shall be excluded he or she may elect to withdraw therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in and the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.managing
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If any Holders initiating a registration request hereunder (the “Initiating Holders Holders”) intend to distribute the Registrable Securities covered by their request by means of an underwritingunderwriting pursuant to Section 2.3 or Section 2.5, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 2.3 or Section 2.5 and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i)2.3(a) or Section 2.5(a) above, as applicable. In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Initiating Holders (which underwriter or underwriters shall be selected by a majority in interest of the Initiating Holders, which underwriters are Holders and shall be reasonably acceptable to the Company (and with respect to the Company’s Initial Public Offering, the Holders holding not less than sixty-six and two-thirds percent (66-2/3%) of those Senior Preferred Registrable Securities then outstanding). Notwithstanding any other provision of this Section 2.12.3 or of Section 2.5, if the underwriters advise the Initiating Holders managing underwriter determines in writing good faith that marketing factors require a limitation on of the number of securities to be underwritten (including Registrable Securities) and the managing underwriter so advises the Company in writing (an “Underwriter Cutback”), then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares to be underwritten, the number of Registrable Securities that may be so included in the underwriting shall be allocated as followsin the following order of priority: (i) first, among all to the Major Series E Holders, but only until the Major Series E Holders requesting have received an aggregate amount equal to include $75,000,000 (in one or more underwritten offerings) in respect of their Registrable Securities included in such registration statement underwritten offerings, taking into account allocations to the Major Series E Holders from any prior underwritten offerings; second, to Holders of Senior Preferred Registrable Securities, but excluding the Major Series E Holders, on a pro rata basis based on the pro rata percentage total number of then outstanding shares of Senior Preferred Registrable Securities held by such Holders requesting inclusion in such offering (on an as-converted to Common Stock basis), but only until such Holders have received an aggregate amount equal to $125,000,000 (in one or more underwritten offerings) in respect of their Senior Preferred Registrable Securities included in underwritten offerings, taking into account allocations to such Holders from any prior underwritten offerings; third, to Holders of Senior Preferred Registrable Securities allocated among such Holders on a Fully Diluted basis; and pro rata basis based on (i) the dollar amount of the original purchase prices paid to the Company by the original purchaser for the Senior Preferred Registrable Securities held by each Holder requesting inclusion in such offering compared to (ii) secondthe aggregate dollar amount of the original purchase prices paid to the Company by the original purchasers for all the Senior Preferred Registrable Securities held by all such Holders requesting inclusion in such offering; fourth, to the Holders of Series A Preferred and Series A-2 Preferred on a pro rata basis based on the total number of then outstanding shares of Series A Preferred or Series A-2 Preferred of the Company held by such Holders (on an as-converted to Common Stock basis); fifth, to the Company; and sixth, which to any stockholder of the Company may allocate, at its discretion, for its own account, or for (other than a Holder) on a pro rata basis based on the account total number of other holders or employees then outstanding shares of capital stock of the CompanyCompany held by such stockholder; provided, however, that no such reduction in an offering subject to the provisions of Section 2.4 above shall reduce the number of shares of Senior Preferred Registrable Securities held by Holders who have requested inclusion of Registrable Securities to below twenty percent (20%) of the total amount of shares included in such offering. Notwithstanding the foregoing, in no event will shares of any party other than a Holder be included in such a registration without the written consent of the Holders holding not less than (i) a majority of the Registrable Securities then outstanding, (ii) sixty-six and two-thirds percent (66-2/3%) of those Series B/C/D Registrable Securities then outstanding, and (iii) sixty-six and two-thirds percent (66-2/3%) of those Series E Registrable Securities then outstanding, if such inclusion would reduce the number of shares that may be included by Holders. If a person who has requested inclusion in such registration as provided above does not agree to any Holder disapproves of the terms of any such underwriting, such person shall be excluded Holder may elect to withdraw therefrom by written notice from to the Companymanaging underwriter, delivered at least ten (10) business days prior to the underwriter or effective date of the Initiating Holders. The securities so excluded shall also be withdrawn from registrationregistration statement. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so excluded and withdrawn from the registration. For any Holder that is a partnership, limited partnership or corporation, the partners, limited partners, retired partners, retired limited partners and stockholders of such Holder, or the estates and family members of any such partners, limited partners, retired partners, retired limited partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be collectively a single “Holder,” and any pro rata reduction with respect to such “Holder” shall be based upon the aggregate amount of shares carrying registration rights (or upon the original purchase price of such shares, as the case may be) owned by all entities and individuals included in such “Holder,” as defined in this sentence. If the registration statement under which the Company gives notice under Section 2.4 is for an underwritten offering, the Company shall so advise the Holders of Registrable Securities. In such event, the right of any such Holder to be included in a registration pursuant to Section 2.4 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall enter into (directly or through a proxy, custodian or representative) an underwriting agreement in customary form with the underwriter or underwriters reasonably selected for such underwriting by the Company (which underwriter or underwriters shall be reasonably acceptable to the Holders holding not less than a majority of the Registrable Securities, sixty-six and two-thirds percent (66-2/3%) of the Series B/C/D Registrable Securities and sixty-six and two-thirds percent (66-2/3%) of the Series E Registrable Securities to the extent such Holders are participating in such underwritten offering). Notwithstanding any other provision contained in this Agreement, if the managing underwriter determines in good faith that marketing factors require a limitation of the number of shares to be underwritten (including Registrable Securities), the number of shares that may be included in the underwriting shall be allocated in the same order of priority as provided in this Section 2.5 above, unless the registration is for the Initial Public Offering, in which case the Registrable Securities held by the Holders may be completely excluded if such exclusion is considered necessary in the good faith judgment of the Board. In no event will shares of any selling stockholder other than a Holder be included in such registration was previously reduced as without the written consent of (i) a result majority of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to then outstanding, (ii) sixty-six and two-thirds percent (66-2/3%) of those Series B/C/D Registrable Securities then outstanding, and (iii) sixty-six and two-thirds percent (66-2/3%) of those Series E Registrable Securities then outstanding, if such inclusion would reduce the number of shares so withdrawnthat may be included by Holders. If any Holder disapproves of the terms of any such underwriting, with such shares Holder may elect to withdraw therefrom by written notice to the Company and the managing underwriter, delivered at least ten (10) business days prior to the effective date of the registration statement. Any Registrable Securities excluded or withdrawn from such underwriting shall be excluded and withdrawn from the registration. For any Holder that is a partnership, limited partnership or corporation, the partners, limited partners, retired partners, retired limited partners and stockholders of such Holder, or the estates and family members of any such partners, limited partners, retired partners, retired limited partners and any trusts for the benefit of any of the foregoing persons shall be deemed to be allocated among collectively a single “Holder,” and any pro rata reduction with respect to such Holders requesting additional inclusion, “Holder” shall be based upon the aggregate amount of shares carrying registration rights owned by all entities and individuals included in such “Holder,” as set forth abovedefined in this sentence.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d1.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If the Initiating Holders intend a Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to this Section 2.1 4.1(a) above and the Company shall include such any information that it shall have received as to the nature of the underwriting in the written notice given pursuant of the Company referred to in Section 2.1(a)(i)4.1(a) above, including the name of the underwriter or representative thereof selected for such underwriting. In such event, the right of any A Holder may elect to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and all or a part of the inclusion of such Holder’s Registrable Securities held by it. Any underwriter selected by such Holder shall be subject to the extent provided hereinCompany's consent (which consent shall not be unreasonable withheld). If the Company wishes to include in any registration pursuant to Section 4.1 securities being sold for its own account, or if the Other Stockholders shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account4.1, the Initiating Holders shall, on behalf of all Holders, Company may offer to include the securities of the Company and such securities Other Stockholders in the underwriting and (in the case of Other Shareholders) may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)Agreement. The Company shall (together with all Holdersthe Holder and Other Stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Companyunderwriting. Notwithstanding any other provision of this Section 2.14.1, if the representative of the underwriters advise advises the Initiating Holders Company in writing that that, in its opinion, marketing factors require a limitation on the number of shares to be underwritten, the Company shall so advise the Holder and the number of shares of Registrable Securities and other securities that may be so included in the registration and underwriting shall be allocated as followsin the following manner: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or securities being sold for the account of other holders or employees the Company shall be excluded from such registration and underwriting to the extent required by such limitation (ii) if a limitation on the number of shares is still required, the securities held by the Other Stockholders of the CompanyCompany shall be excluded from such registration and underwriting to the extent required by such limitation in proportion, as nearly practicable, to the respective amounts of securities requested to be registered by such Other Stockholders or otherwise as their rights may appear and (iii) if a limitation on the number of shares is still required, the securities held by the Holders of the Company shall be excluded from such registration and underwriting to the extent required by such limitation in proportion, as nearly practicable, to the respective amounts of securities requested to be registered by the Holders or otherwise as their rights may appear. If the Company or a person Holder or any Other Stockholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors If, pursuant to this Section 2.1(d)paragraph, then any of the Company shall then offer securities being sold for the account of such Holder are to all Holders that have retained rights to include securities in be excluded from such registration and underwriting, such Holder may withdraw its request for such registration or underwriting and such request will not be counted as the registration the right permitted under Section 4.1 of this Agreement, or such Holder may have such securities registered as a non-underwritten "shelf" registration pursuant to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveRule 415.
Appears in 1 contract
Sources: Registration Rights Agreement (Republic Airways Holdings Inc)
Underwriting. If In the Initiating Holders intend event that a registration pursuant to distribute the Registrable Securities covered by their request by means of Section 3.1 is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i3.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 3.1 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this Section 3.1, and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative managing underwriter of the underwriter or underwriters recognized national standing selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Company and reasonably acceptable to a majority of the CompanyHolders proposing to distribute their securities through such underwriting. Notwithstanding any other provision of this Section 2.13.1, if the underwriters advise managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the Company shall so advise all holders of Registrable Securities and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all Holders requesting thereof in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on at the time of filing the registration statement or in such other manner as shall be agreed to by the Company and all Holders of the Registrable Securities proposed to be included in such registration. Notwithstanding the foregoing, the number of shares of Registrable Securities requested by Nortel to be included in an underwriting pursuant to a Fully Diluted basis; and (ii) secondNortel Demand shall not be reduced unless all other securities are first entirely excluded from such underwriting. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such Holder may elect to withdraw therefrom by written notice to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or and the Initiating Holders. The Registrable Securities and/or other securities so excluded withdrawn shall also be withdrawn from registration. Any , and such Registrable Securities or other securities excluded or withdrawn from such underwriting shall also not be withdrawn from such registration. If shares are so withdrawn from transferred in a public distribution prior to 180 days after the registration and if the number effective date of shares to be included in such registration was previously reduced as a result (in the case of marketing factors pursuant to this Section 2.1(dthe Company's initial public offering) or 90 days after the effective date of such registration (in the case of any other registration), then or such other shorter period of time as the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveunderwriters may require.
Appears in 1 contract
Sources: Registration Rights Agreement (Interwave Communications International LTD)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 5.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i5.1(a)(1). In such event, the right of any Holder to include all or any portion of its Registrable Securities in such a registration pursuant to this Section 2.1 5.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 5.1 of securities being sold for its own account, or if other Persons shall request inclusion in any registration pursuant to Section 5.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other Persons in such underwriting and the inclusion of the Company’s and such Person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 5 (including Section 2.105.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.15.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person Person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person Person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute registration statement under which the Registrable Securities covered by their request by means of Company gives notice under this Section 2.3 is for an underwritingunderwritten offering, they the Company shall so advise the Company as a part Holders of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i)Registrable Securities. In such event, the right of any such Holder to include all or any portion of its Registrable Securities be included in a registration pursuant to this Section 2.1 2.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in distribute their Registrable Securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1the Agreement, if the underwriters advise the Initiating Holders underwriter determines in writing good faith that marketing factors require a limitation on of the number of shares to be underwritten, the number of Registrable Securities shares that may be so included in the underwriting shall be allocated as follows: allocated,
(i) first, among all to the Company;
(ii) second, to the Holders requesting to include Registrable Securities in such registration statement who are (a) Investors, (b) holders of Series B Stock, and (c) Robe▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇ a pro rata basis based on the pro rata percentage total number of Registrable Securities held by such Holders and Mr. ▇▇▇▇▇▇;
(iii) third, to Robe▇▇ ▇. ▇▇▇▇▇▇, ▇▇.;
(iv) fourth, to Holders who are Founders (other than Mr. ▇▇▇▇▇▇) ▇▇ a pro rata basis based on the total number of Registrable Securities held by such Holders; and
(v) fifth, to any other shareholders of the Company (other than a Holder) on a Fully Diluted pro rata basis; and . No such reduction shall (iiy) second, to reduce the Company, which securities being offered by the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion to be included in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if underwriting, or (z) reduce the number amount of shares securities of Robe▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇ the selling Holders who are Investors or holders of Series B Stock to below twenty-five percent (25%) of the total amount of securities to be included in such registration, unless such offering is the Initial Offering and such registration was previously reduced as a result does not include shares of marketing factors pursuant to this Section 2.1(d)any other selling shareholders, then in which event any or all of the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities of the Holders (including Mr. ▇▇▇▇▇▇) ▇▇y be excluded in accordance with the preceding sentence. In no event will shares of any other selling shareholder be included in such registration in an aggregate amount equal to which would reduce the number of shares so withdrawn, with such shares to which may be allocated among such included by Holders requesting additional inclusion, as set forth above.without the written
Appears in 1 contract
Sources: Common Stock and Warrant Purchase Agreement (Internap Network Services Corp/Wa)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 paragraph 9.3 and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(i)in subparagraph 9.3
(a) (i) above. In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 paragraph 9.3 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. If officers or directors of the Company holding other securities of the Company shall request inclusion in any registration pursuant to Section 2.1 this paragraph 9.3, of if holders of securities being sold for its own accountof the Company who are entitled, by contract with the Company, to have securities included in such registration (the "Other Shareholders") request such inclusion, the Initiating Holders shall, on behalf of all Holders, offer to include the securities of such securities officers, directors and Other Shareholders in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further all applicable provisions of this Section 2 (including Section 2.10)9. The Company shall (together with all Holders, officers, directors and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1paragraph 9.3, if the representative of the underwriter or underwriters advise advises the Initiating Holders in writing that marketing factors require make it advisable to impose a limitation on the number of shares to be underwritten, the securities of the Company (other than Registrable Securities) held by officers or directors of the Company and by Other Shareholders shall be excluded from such registration to the extent so required by such limitation and if a limitation of the number of shares is still required, the Initiating Holders shall so advise all Holders of Registrable Securities whose securities would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all such Holders requesting in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to persons at the Company, which time of filing the Company may allocate, at its discretion, for its own account, registration statement. No Registrable Securities or for any other securities excluded from the account of other holders or employees underwriting by reason of the Companyunderwriter's marketing limitation shall be included in such registration. If a person who has requested inclusion in such registration as provided any Holder of Registrable Securities, officer, director or Other Shareholder above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded party may elect to withdraw therefrom by written notice from to the Company, the underwriter or the and Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any If the underwriter has not limited the number of Registrable Securities or other securities excluded or withdrawn from to be underwritten, the Company may include its securities for its own account in such underwriting shall also be withdrawn from such registration. If shares are registration if the underwriter so withdrawn from the registration agrees and if the number of shares to be Registrable Securities and other securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to and underwriting will not thereby be allocated among such Holders requesting additional inclusion, as set forth abovelimited.
Appears in 1 contract
Sources: Purchase Agreement (Genaissance Pharmaceuticals Inc)
Underwriting. (a) If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Banks as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i2.1(a). In such event, the right of any Holder Bank to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 2 shall be conditioned upon such Holder’s Bank's participation in such underwriting and the inclusion of such Holder’s Registrable Securities Bank's Warrant Shares in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Banks proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. .
(b) Notwithstanding any other provision of this Section 2.12, if the underwriters advise the Initiating Holders in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the underwriter may exclude some or all Warrant Shares from such registration and underwriting. The Company shall so advise all Banks requesting registration, and the number of Registrable Securities that may shares of Common Stock to be so included in such registration shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, all shares of Common Stock proposed to be sold by the underwriter or Company; second, for the Initiating account of "Holders. The securities so excluded shall also be withdrawn " as defined in the Amended and Restated Registration Rights Agreement dated as of December 6, 1996, among Teletrac and such Holders, as assigned to the Company effective July 31, 1997 and as amended from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from time to time (the registration and if "Registration Rights Agreement"), the number of shares of Common Stock requested to be included in the registration by such registration was previously reduced Holders as a result provided in the Registration Rights Agreement; and third, for the account of marketing factors pursuant the Banks, the number of Warrant Shares requested to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities be included in the registration by such Banks in proportion, as nearly as practicable, to the right respective amounts of Warrant Shares that are proposed to include additional Registrable Securities in be offered and sold by such Banks at the time of filing the registration statement. No Warrant Shares excluded from the underwriting by reason of the underwriters' marketing limitation shall be included in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveregistration.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such a underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to Initiating Holders holding at least 60% of the CompanySeries A Registrable Securities held by all Initiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company Corporation as a part of their request made pursuant to this Section 2.1 1.3(a)(i) hereof and the Company Corporation shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i)1.3(a)(i) hereof. In such event, the right of any Holder to include all or any portion of its Registrable Securities participate in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this Section 1.3(a)(i), and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company other persons shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account1.3(a), the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)1. The Company Corporation shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form (but subject to the reasonable approval of the Holders holding a majority of the Registrable Securities to be included in such underwriting) with the representative of the managing underwriter or underwriters selected for such underwriting by the Holders holding a majority in interest of the Initiating HoldersRegistrable Securities to be included in such underwriting, which underwriters are managing underwriter shall be reasonably acceptable to the CompanyCorporation. The Corporation and the Holders participating in such underwriting shall reasonably cooperate with any such underwriter. Notwithstanding any other provision of this Section 2.11.3, if the underwriters advise managing underwriter advises the Initiating Holders in writing that that, in its good faith judgment, marketing factors require a limitation on of the number of shares to be underwritten, then the Corporation shall so advise all participating Holders and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities set forth in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the CompanySection 1.11. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the CompanyCorporation, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d1.3(a)(ii), then the Company Corporation shall then offer to all Holders that persons who have retained rights to include securities in the registration the right to include additional Registrable Securities securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders persons requesting additional inclusioninclusion in accordance with Section 1.11. If the underwriter has not limited the number of Registrable Securities to be underwritten, the Corporation may include securities for its own account (or for the account of other shareholders in accordance with the terms of this Agreement) in such registration if the underwriter so agrees and if the number of Registrable Securities that would otherwise have been included in such registration and underwriting will not thereby be limited. If the number of Registrable Securities excluded from the underwriting exceeds fifty percent (50%) of the total Registrable Securities requested to be included in such underwriting by the Holders, then Holders of a majority of the Registrable Securities requested to be included in such underwriting may elect to terminate the registration. If such election to terminate is elected, such registration shall not count as set forth abovea demand registration.
Appears in 1 contract
Sources: Registration Rights Agreement (Cyberian Outpost Inc)
Underwriting. (i) If the Initiating Holders intend Piggy-Back Registration of which the Corporation gives notice pursuant to distribute the Registrable Securities covered by their request by means of Section 3.3(a)(i) is for a registered offering involving an underwriting, they shall the Corporation will so advise each of the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i)notice. In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall 3.3 will be conditioned upon such that Holder’s participation in such the underwriting arrangements required by this Section 3.3(b) and the inclusion of such that Holder’s Registrable Securities in the underwriting to the extent requested will be limited to the extent provided herein. If in this Agreement.
(ii) In any Piggy-Back Registration initiated by the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own accountCorporation, the Initiating Holders shallCorporation will have the right to select the investment banker(s), on behalf of all Holdersunderwriter(s), offer and manager(s) to include such securities in administer the underwriting and such offer shall be conditioned upon offering, subject to the participation approval of the Company Holders of a majority of the Registrable Securities included in such registration (on an As-Converted Basis), which in each case will not be unreasonably withheld.
(iii) The Holders proposing to distribute their securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall will (together with all Holdersthe Corporation and the other shareholders distributing their securities through that underwriting) enter into an underwriting agreement in customary form with the representative underwriters, such agreement to be in form and substance satisfactory to all shareholders requesting such registration, acting reasonably, and to contain such representations and warranties and indemnity and contribution provisions by the Corporation and such other terms as are customarily contained in agreements of that type. Each such shareholder (including the Holders) shall be a party to such underwriting agreement and may, at its option, require that any or all of the underwriter representations and warranties by, and the other agreements on the part of, the Corporation to and for the benefit of such underwriters shall also be made to and for the benefit of each such Holder and that any or all of the conditions precedent to the obligations of such underwriters selected for under such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable agreement be conditions precedent to the Companyobligations of each such Holder. No Holder requesting a registration shall be required to make any representations or warranties to or agreements with the Corporation or the underwriters other than representations, warranties or agreements regarding such Holder and its intended method of distribution and any other representation required by the applicable Securities Laws.
(iv) Notwithstanding any other provision of this Section 2.13.3, if the underwriters advise and the Initiating Holders Corporation, acting reasonably and in good faith, together determine in writing that marketing factors require a limitation on that, in their opinion, the number of shares securities to be underwrittenincluded in the offering relating to such Piggy-Back Registration exceeds the number of securities that can be sold in such offering and that the number of securities proposed to be included in such offering would adversely affect the price per security to be sold in such offering, the Corporation shall be required to include in the offering only that number of such Registrable Securities that the underwriters and the Corporation determine, acting reasonably and in good faith, will not jeopardize the success of the offering. The Corporation will advise the Holders of Registrable Securities distributing their securities through such underwriting of this exclusion and the number and estimated dollar value of the Holders’ securities that may be included in the registration. The underwriting will be allocated (i) first, to the Corporation (but only if it initiates such offering failing which the priority set forth in Section 3.1(d)(iv) shall apply), (ii) second, among the Holders of Registrable Securities, in respect of their Registrable Securities, on a pro rata basis based on the number of Registrable Securities that held by all such Holders calculated on an As-Converted Basis, or in such manner as they may be so included shall be allocated as follows: otherwise agree, and (iiii) firstthird, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced offering, allocated among such holders pro rata based on the number of securities held by all such holders calculated on an as a result of marketing factors pursuant to this Section 2.1(d)converted basis or in such manner as they may otherwise agree; provided in each case that, then the Company shall then offer to all Holders that have retained rights to include securities in unless the registration is in respect of the right to include additional Initial Offering, in no event shall the Registrable Securities owned by the Holders included in such underwriting be reduced below 30% of the total number of securities included in such underwriting. To facilitate the allocation of Registrable Securities in accordance with the registration in an aggregate amount equal to above provisions, the Corporation may round the number of shares so withdrawnRegistrable Securities allocated to any Holder to the nearest appropriate “round number” integral.
(v) If a Holder disapproves of the terms of the underwriting, with such shares Holder may elect to withdraw from that underwriting by written notice to the Corporation, the other Holders, the underwriters and the other participating shareholders. Any Registrable Securities of such withdrawing Holder excluded or withdrawn from that underwriting will be withdrawn from registration, and will continue to be allocated among such Holders requesting additional inclusion, as set forth abovesubject to the terms of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Repare Therapeutics Inc.)
Underwriting. If the Initiating Holders intend or are ------------ required to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 Subsection 11.2.1 and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(i)in Subsection 11.2.2(i) hereof. In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 11.2 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 11.2 of securities being sold for its own account, or if Other Shareholders shall request inclusion in any registration pursuant hereto, then, subject to the last sentence of this Subsection 11.2.3 with respect to the Company's request, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)Article 11. The Company shall (together with all HoldersHolders and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form and containing customary terms reasonably acceptable to the Initiating Holders, with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest the Company and reasonably acceptable to the Initiating Holders; provided, however, that if the Company has not selected an underwriter reasonably acceptable to the Initiating Holders within thirty (30) days after the Company's receipt of the request for registration from the Initiating Holders, which underwriters are then the Initiating Holders may select an underwriter reasonably acceptable to the CompanyCompany in connection with such registration. Notwithstanding any other provision of this Section 2.111.2, if the underwriters advise underwriter representative advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, the securities of the Company held by Other Shareholders shall first be excluded from such registration to the extent so required by such limitation, and, to the extent additional shares need to be excluded in order to conform to such limitation, the securities requested by the Company to be included, if any, shall next be excluded. The Company shall advise all holders of securities requesting registration as to the number of Registrable Securities shares of securities that may be so included shall be in the registration and underwriting as allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Companyforegoing manner. If a person any Other Shareholder or Holder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if underwriter has not limited the number of shares to be underwritten, the Company may include its securities for its own account in such registration if the underwriter so agrees and if the number of Registrable Securities and other securities of the Holders that would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to and underwriting will not be allocated among such Holders requesting additional inclusion, as set forth abovelimited thereby.
Appears in 1 contract
Sources: Investment Agreement (Webmd Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 9.5 and the Company shall include such information in the written notice given pursuant referred to Section 2.1(a)(i)in subsection 9.5 (a)(a)(i) above. In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 9.5 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided herein. If officers or directors of the Company holding other securities of the Company shall request inclusion in any registration pursuant to this Section 2.1 9.5, or if holders of securities being sold for its own accountof the Company who are entitled, by contract with the Company, to have securities included in such registration (the "Other Shareholders") request such inclusion, the Initiating Holders shall, on behalf of all Holders, offer to include the securities of such securities officers, directors and Other Shareholders in the underwriting and may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further all applicable provisions of this Section 2 (including Section 2.10)9. The Company shall (together with all Holders, officers, directors and Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Holders and reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.19.5, if the representative of the underwriter or underwriters advise advises the Initiating Holders in writing that marketing factors require make it advisable to impose a limitation on the number of shares to be underwritten, the securities of the Company (other than Registrable Securities) held by officers or directors of the Company and by Other Shareholders shall be excluded from such registration to the extent so required by such limitation and if a limitation of the number of shares is still required, the Initiating Holders shall so advise all Holders of Registrable Securities requesting registration, and the number of shares of Registrable Securities that may be so included in the registration and underwriting on behalf of such Holders shall be reduced as required, such reduction to be allocated among such Holders in proportion, as follows: (i) firstnearly as practicable, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to persons at the Company, which time of filing the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the CompanyRegistration Statement. If a person who has requested inclusion in such registration as provided any Holder of Registrable Securities, officer, director or Other Shareholder above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded party may elect to withdraw therefrom by written notice from to the Company, the underwriter or and the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any If the underwriter has not limited the number of Registrable Securities or other securities excluded or withdrawn from to be underwritten, the Company may include its securities for its own account in such underwriting shall also be withdrawn from such registration. If shares are registration if the underwriter so withdrawn from the registration agrees and if the number of shares to be Registrable Securities and other securities which would otherwise have been included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to and underwriting will not thereby be allocated among such Holders requesting additional inclusion, as set forth abovelimited.
Appears in 1 contract
Sources: Series C Preferred Stock Purchase Agreement (Cellomics Inc)
Underwriting. If In the Initiating Holders intend event that a registration pursuant to distribute the Registrable Securities covered by their request by means of this paragraph 1.2 is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(iparagraph 1.2(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 paragraph 1.2 shall be conditioned upon such Holder’s 's participation in such the underwriting arrangements required by this paragraph 1.2(b), and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are Company and reasonably acceptable to a majority of the CompanyHolders proposing to distribute their securities through such underwriting. Notwithstanding any other provision of this Section 2.1paragraph 1.2, if the underwriters advise managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the Company shall so advise all holders of Registrable Securities and the number of shares of Registrable Securities that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all Holders requesting thereof in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on at the time of filing the registration statement or in such other manner as shall be agreed to by the Company and Holders of a Fully Diluted basis; and (ii) secondmajority of the Registrable Securities proposed to be included in such registration. No Registrable Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, the Company or the underwriters may round the number of shares allocated to any Holder to the nearest 100 shares. If any Holder of Registrable Securities disapproves of the terms of the underwriting, such person may elect to withdraw therefrom by written notice to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the managing underwriter or and the Initiating Holders. The Registrable Securities and/or other securities so excluded withdrawn shall also be withdrawn from registration. Any , and such Registrable Securities or other securities excluded or withdrawn from such underwriting shall also not be withdrawn from transferred in a public distribution prior to 180 days after the effective date of such registration. If shares are so withdrawn from , or such other shorter period of time as the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveunderwriters may require.
Appears in 1 contract
Sources: Stockholder Rights Agreement (Vnus Medical Technologies Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.102.11). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute Unless the Registrable Securities covered may be registered by their request by means of an underwriting, they shall so advise the Company as on a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such eventForm S-3, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)) . The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders Holders, assuming conversion; (ii) second, to the Other Selling Stockholders requesting to include Other Shares in such registration statement based on a Fully Diluted basisthe pro rata percentage of Other Shares held by such Other Selling Stockholder, assuming conversion; and (ii) secondthird, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i------- 3.2
(a) (i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to --------- this Section 2.1 3.2 shall be conditioned upon such Holder’s 's participation in such underwriting and ----------- underwriting, the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting herein and such offer shall other restrictions as may be conditioned upon reasonably imposed by the participation of underwriter and the Company in Company. All Holders proposing to distribute their securities through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the other holders of securities of the Company with registration rights to participate therein distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.13.2, if the ----------- representative of the underwriters advise advises the Initiating Holders Company in writing that marketing factors require a limitation on the number of shares to be underwrittenunderwritten or the Company's Board of Directors reasonably determines that the number of shares proposed to be registered must be reduced in view of then existing market conditions, the Company shall be required to include in the offering only that number of Registrable Securities and Other Shares (as defined in Section 3.9 ----------- below) that may be the Board of Directors determine in its sole discretion will not jeopardize the success of the offering (the securities so included shall to be allocated as follows: (i) first, apportioned pro rata among all the selling Holders and Other Stockholders requesting to include Registrable Securities participate in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own accountin accordance with Section 3.9 hereof, or for the account of in ----------- such other holders or employees of the Companyproportions as shall mutually be agreed to be such selling Holders). If a any person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person he or she shall be excluded therefrom by written notice from the Company, the underwriter Company or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationunderwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares of Registrable Securities to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d)factors, then the Company shall then offer to all Holders that persons who have retained rights the right to include securities in the registration the right to include additional Registrable Securities securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders the persons requesting additional inclusion, as set forth above.inclusion in accordance with Section 3.9 hereof. -----------
Appears in 1 contract
Underwriting. (a) If requested by the Initiating Holders intend to distribute the underwriters for any underwritten offering of Registrable Securities covered by their request by means of an underwritingpursuant to a registration requested hereunder, they shall so advise the Company as a part of their request made pursuant will enter into and perform its obligations under an underwriting agreement with such underwriters for such offering, such agreement to this Section 2.1 contain such representations and warranties by the Company shall include and such information other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting effect and the inclusion of such Holder’s Registrable Securities to the extent provided hereinin Section 6 hereof and the provision of opinions of counsel and accountants’ letters to the effect and to the extent provided in Section 4.1(f). If Philips shall, if requested by such underwriters, be party to any such underwriting agreement. Notwithstanding the Company shall request inclusion foregoing, Philips may elect, in writing prior to the effective date of the Registration Statement filed in connection with such registration, not to register such Registrable Securities in connection with such registration.
(b) In the event that any registration pursuant to Section 2.1 of securities being sold for its own account3 hereof shall involve, the Initiating Holders shallin whole or in part, on behalf of all Holdersan underwritten offering, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holders) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any require Registrable Securities or other securities excluded or withdrawn from such underwriting shall also requested to be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares registered pursuant to Section 3 to be included in such underwriting on the same terms and conditions as shall be applicable to the Other Securities being sold through underwriters under such registration. In such case, the holders of Registrable Securities on whose behalf Registrable Securities are to be distributed by such underwriters shall be parties to any such underwriting agreement. Such agreement shall contain such representations and warranties and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the effect and to the extent provided in Section 6.
(c) In the event that any registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d)2 hereof shall involve, then the Company in whole or in part, an underwritten offering, Philips shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities select the underwriters for such underwritten offering, which underwriters shall be subject to approval by the Company, which approval shall not be unreasonably withheld or delayed. The underwriting agreement shall contain such representations and warranties and such other terms and provisions as are customarily contained in the registration in an aggregate amount equal underwriting agreements with respect to secondary distributions, including, without limitation, indemnities and contribution to the number of shares so withdrawn, with such shares effect and to be allocated among such Holders requesting additional inclusion, as set forth abovethe extent provided in Section 6.
Appears in 1 contract
Sources: Registration Rights Agreement (Koninklijke Philips Electronics Nv)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company gives ------------ notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i8.6(a)(i). In such event, event the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 8.6 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the Other Shareholders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for underwriting by the Company, provided that such underwriting by a majority in interest agreement shall not provide for -------- indemnification or contribution obligations on the part of Holders greater than the obligations of the Initiating Holders pursuant to Section 8.9(b) unless agreed to by such Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.18.6, if the underwriters advise the Initiating Holders in writing underwriter determines that marketing factors require a limitation on the number of shares to be underwritten, the underwriter may limit the number of Registrable Securities to be included in the registration and underwriting. The Company shall so advise all holders of securities requesting registration, and the number of shares of securities that are entitled to be included in the registration and underwriting shall be allocated in the following manner. The securities of the Company held by officers and directors of the Company (other than Registrable Securities) shall be excluded from such registration and underwriting to the extent required by such limitation, and, if a limitation on the number of shares is still required, the number of shares that may be so included in the registration and underwriting shall be allocated as follows: (i) first, among all such Holders requesting and Other Shareholders in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities and other securities which they held by such Holders on a Fully Diluted basis; and (ii) second, to at the Company, which time the Company may allocate, at its discretion, for its own account, or for gives the account of other holders or employees of the Companynotice specified in Section 8.6(a)(i). If a person who has requested inclusion in such registration as provided above does not agree to any Holder of Registrable Securities or any officer, director or Other Shareholder disapproves of the terms of any such underwriting, such person shall be excluded he may elect to withdraw therefrom by written notice from to the Company, Company and the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationunderwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Preferred Stock and Warrant Purchase Agreement (Banyan Systems Inc)
Underwriting. If the Initiating Holders intend to distribute registration of which the Registrable Securities covered by their request by means of Company ------------ gives notice is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i5.2(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 5.2 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company and the other holders distributing their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.15.2, if the underwriters advise the Initiating Holders in writing managing underwriter determines that marketing factors require a limitation on of the number of shares to be underwritten, the number of managing underwriter may limit the Registrable Securities that may to be so included shall be allocated as followsin such registration: (i) firstin the case of the Company's initial public offering, to zero; and (ii) in the case of any other offering, to an amount no less than twenty-five percent (25%) of all shares to be included in such offering; provided, however, that (x) any such limitation or -------- ------- "cut-back" shall be first applied to all shares proposed to be sold in such offering other than for the account of the Company which are not Registrable Securities, and (y) notwithstanding clause (x), in no event shall any shares being sold by a shareholder exercising a demand registration right similar to that granted in Section 5.1 be excluded from such offering. The Company shall so advise all Holders and other holders distributing their securities through such underwriting, that the number of shares of Registrable Securities or other securities that may be included in the registration and underwriting shall be first allocated among all the Holders requesting in proportion, as nearly as practicable, to include Registrable Securities in such registration statement based on the pro rata percentage respective amounts of Registrable Securities held by such Holders on a Fully Diluted basis; and (ii) secondHolder at the time of filing the Registration Statement. To facilitate the allocation of shares in accordance with the above provisions, to the Company, which the Company may allocate, at its discretion, for its own account, or for round the account number of other holders or employees of shares allocated to any Holder to the Companynearest one hundred (100) shares. If a person who has requested inclusion in such registration as provided above does not agree to any Holder or holder disapproves of the terms of any such underwriting, such person shall be excluded he may elect to withdraw therefrom by written notice from to the Company, Company and the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registrationmanaging underwriter. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from registration and shall not be transferred in a public distribution prior to one hundred eighty (180) days after the effective date of the registration and if statement relating thereto, or such other shorter period of time as the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveunderwriters may require.
Appears in 1 contract
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in majority-in-interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and other shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to any other selling stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Investor Rights Agreement (ShockWave Medical, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Peloton Therapeutics, Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 Subsection 2.2 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 Subsection 2.2 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Subsection 2.2, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10Subsection 2.11). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating HoldersCompany, which underwriters are reasonably acceptable to a majority-in-interest of the CompanyInitiating Holders. Notwithstanding any other provision of this Section 2.1Subsection 2.2, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; and (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(dSubsection 2.2(e), then the Company shall then offer to all Holders that who have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth above.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Helios & Matheson Analytics Inc.)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if Other Selling Stockholders shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such Other Selling Stockholders in such underwriting and the inclusion of the Company’s securities and its upon their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company which underwriter or underwriters are reasonably acceptable to a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities Securities, Other Shares and shares proposed to be sold for the Company’s account that may be so included shall be allocated as follows: (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion into shares of Common Stock; and (ii) second, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of Other Selling Stockholders, other holders stockholders or employees of the Company, and (iii) third, to the Other Selling Stockholders based on the pro rata percentage of Other Shares held by such Other Selling Stockholders, assuming conversion into shares of Common Stock. If a person stockholder who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person stockholder’s securities shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated first among such Holders and second to Other Selling Stockholders requesting additional inclusion, as set forth above.
Appears in 1 contract
Underwriting. (i) If the Initiating Holders intend Holder intends to distribute dispose of the Registrable Securities covered by their request for which a Demand Registration has been requested under Section 3.1(a) by means of an underwriting, they the Initiating Holder shall so advise the Company Corporation as a part of their its request made pursuant to this Section 2.1 3.1(a) and the Company shall include such information in Corporation will advise the written other Holders as part of the notice given pursuant to Section 2.1(a)(i). In such event, 3.1(b)(i) that the right of any Holder the other Holders to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall 3.1 will be conditioned upon such that Holder’s participation in such the underwriting arrangements required by this Section 3.1(d), and the inclusion of such that Holder’s Registrable Securities in the underwriting to the extent requested will be limited to the extent provided herein. If in this Agreement.
(ii) The Holders of a majority of the Company shall request inclusion Registrable Securities included in any registration pursuant Demand Registration (on an As-Converted Basis) will have the right to Section 2.1 of securities being sold for its own accountselect the investment banker(s), underwriter(s), and manager(s) to administer the Initiating Holders shalloffering, on behalf of all Holders, offer subject to include such securities in prior consultation with the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 Corporation.
(including Section 2.10). iii) The Company shall Corporation (together with all Holdersthe Holders proposing or required to distribute their Registrable Securities through such underwriting) shall enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for that underwriting by the Corporation, acting reasonably, such agreement to be in form and substance satisfactory to the Holders requesting such registration, acting reasonably, and to contain such representations and warranties and indemnity and contribution provisions by the Corporation and such other terms as are customarily contained in agreements of that type. Each Holder shall be a party to such underwriting by a majority in interest agreement and may, at its option, require that any or all of the Initiating Holdersrepresentations and warranties by, which and the other agreements on the part of, the Corporation to and for the benefit of such underwriters are reasonably acceptable shall also be made to and for the benefit of each Holder and that any or all of the conditions precedent to the Companyobligations of such underwriters under such underwriting agreement be conditions precedent to the obligations of each Holder. No Holder requesting a Demand Registration shall be required to make any representations or warranties to or agreements with the Corporation or the underwriters other than representations, warranties or agreements regarding such Holder and its intended method of distribution and any other representation required by the applicable Securities Laws.
(iv) Notwithstanding any other provision of this Section 2.13.1, if the underwriters advise the Initiating Holders underwriters, acting reasonably and in good faith, determine in writing that marketing factors require a limitation on that, in their opinion, the number of shares securities to be underwrittenincluded in a Demand Registration exceeds the number of securities that can be sold in the offering relating to such Demand Registration and that the number of securities proposed to be included in the offering in respect of such Demand Registration would adversely affect the price per security to be sold in such offering in respect of such Demand Registration, the underwriters may exclude some or all of the Registrable Securities from the registration. The Corporation will advise the Holders of Registrable Securities of this exclusion and the number and estimated dollar value of Registrable Securities that may be so included shall in the registration. The underwriting will be allocated as follows: (i) first, among all the Holders requesting to include of Registrable Securities Securities, in such registration statement respect of their Registrable Securities, on a pro rata basis based on the pro rata percentage number of Registrable Securities held by all such Holders calculated on a Fully Diluted basis; and an As-Converted Basis, or in such manner as they otherwise agree, (ii) second, to the CompanyCorporation if it elects to participate in such registration, which the Company may allocateand (iii) third, at its discretion, for its own account, or for the account of among any other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such offering, allocated among such holders pro rata based on the number of securities held by all such holders calculated on an as converted basis or in such manner as they may otherwise agree. In no event shall any Registrable Securities be excluded from such underwriting unless all other securities are first excluded.
(v) If each of the Holders has included all of the Registrable Securities which such Holder desires to include in that registration, then the Corporation may include additional securities in the registration was previously reduced for sale for the Corporation’s account on the same terms as the Holders’ Registrable Securities, provided the underwriters advise the Corporation and the Holders in writing that the inclusion does not adversely affect the marketing and the orderly sale of the Holders’ Registrable Securities included in that registration at a result of marketing factors price range acceptable to the Holders, acting reasonably. If the Corporation determines to include Registrable Securities to be sold by it in any registration requests pursuant to this Section 2.1(d)3.1, then such registration shall be deemed to have been a Piggy-Back Registration under Section 3.3, and not a Demand Registration under this Section 3.1. To facilitate the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional allocation of Registrable Securities in accordance with the registration in an aggregate amount equal to above provisions, the Corporation or the underwriters may round the number of shares so withdrawnRegistrable Securities allocated to any Holder to the nearest appropriate “round number” integral.
(vi) If any Holder disapproves of the terms of the underwriting, with such shares Holder may elect to withdraw from the underwriting and registration by written notice to the Corporation and the Initiating Holders. Those Registrable Securities of such withdrawing Holder shall continue to be allocated among such Holders requesting additional inclusion, as set forth abovesubject to the terms of this Agreement.
Appears in 1 contract
Sources: Registration Rights Agreement (Repare Therapeutics Inc.)
Underwriting. If Holders initiating the registration request under Section 1.1(a) or (b), (the "Initiating Holders Holders") intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their such request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant referred to in Section 2.1(a)(i1.1(a)(i) or (b)(i), respectively. The underwriter will be selected by the Company and shall be reasonably acceptable to a majority in interest of the Initiating Holders. In such event, the right of any Holder to include all or any portion of its Registrable Securities in a such registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s 's participation in such underwriting and the inclusion of such Holder’s 's Registrable Securities in the underwriting (unless otherwise mutually agreed by a majority in interest of the Initiating Holders and such Holder) to the extent provided hereinin this Section 1.1(c). If the Company shall request inclusion in any registration pursuant All Holders proposing to Section 2.1 of distribute their securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in through such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all Holdersthe Company as provided in Section 1.3(e)) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Companyunderwriting. Notwithstanding any other provision of this Section 2.11.1, if the underwriters advise underwriter advises the Initiating Holders and the Company in writing that marketing factors require a limitation on of the number of shares to be underwritten, then the Company shall so advise all Holders of Registrable Securities that would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities that may be so included in the underwriting shall be allocated as follows: (i) first, among all Holders requesting thereof, including the Initiating Holders, in proportion (as nearly as practicable) to include Registrable Securities in such registration statement based on the pro rata percentage amount of Registrable Securities held owned by such Holders on a Fully Diluted basiseach Holder; and (ii) secondprovided, to the Companyhowever, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if that the number of shares Registrable Securities to be included in such underwriting shall not be reduced unless all securities which are not Registrable Securities are first entirely excluded from the underwriting. The Company shall have no obligation with respect to any registration was previously reduced as a result of marketing factors requested pursuant to this Section 2.1(d1.1 if, due to the operation of this Section 1.1(c), then the Company shall then offer to all Holders that have retained rights to include securities in the registration the right to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares or the anticipated aggregate offering price of the Registrable Securities to be allocated among included in the registration does not equal or exceed the number of shares or the anticipated aggregate offering price required to originally trigger the Company's obligation to initiate such Holders requesting additional inclusion, registration as set forth abovespecified in this Section 1.1.
Appears in 1 contract
Sources: Stock Purchase Agreement (Eroomsystem Technologies Inc)
Underwriting. If the Initiating Holders intend to distribute the Registrable Securities covered by their request by means of an underwriting, they shall so advise the Company as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(i). In such event, the The right of any Holder to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such an underwriting and the inclusion of such Holder’s Registrable Securities to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, or if other persons shall request inclusion in any registration pursuant to Section 2.1, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company or such other persons in such underwriting and the inclusion of the Company’s and such person’s other securities of the Company and its their acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other persons proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1, if the underwriters advise the Initiating Holders in writing that marketing factors require a limitation on the number of shares to be underwritten, the number of Registrable Securities and Other Shares that may be so included shall be allocated as follows: follows (i) first, among all Holders requesting to include Registrable Securities in such registration statement based on the pro rata percentage of Registrable Securities held by such Holders on a Fully Diluted basisHolders, assuming conversion; and (ii) second, to the Other Selling Stockholders; (iii) third, to the Company, which the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors pursuant to this Section 2.1(d2.1(e), then the Company shall then offer to all Holders that and Other Selling Stockholders who have retained rights to include securities in the registration the right to include additional Registrable Securities or Other Shares in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders and Other Selling Stockholders requesting additional inclusion, as set forth above. For purposes of Section 2.1, a registration shall not be counted as “effected” if, as a result of an exercise of the underwriter’s cutback provisions in Section 2.1(e), fewer than all of the total number of Registrable Securities that Holders have requested to be included in such registration statement are actually included.
Appears in 1 contract
Sources: Investors’ Rights Agreement (PMV Pharmaceuticals, Inc.)
Underwriting. If the Initiating Holders intend a Holder intends to distribute the Registrable Securities covered by their its request by means of an underwriting, they it shall so advise the Company as a part of their its request made pursuant to this Section 2.1 4.1(a) above and the Company shall include such any information that it shall have received as to the nature of the underwriting in the written notice given pursuant of the Company referred to in Section 2.1(a)(i)4.1(a) above, including the name of the underwriter or representative thereof selected for such underwriting. In such event, the right of any A Holder may elect to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 shall be conditioned upon such Holder’s participation in such underwriting and all or a part of the inclusion of such Holder’s Registrable Securities held by it. Any underwriter selected by such Holder shall be subject to the extent provided hereinCompany's consent (which consent shall not be unreasonably withheld). If the Company wishes to include in any registration pursuant to Section 4.1 securities being sold for its own account, or if the Other Stockholders shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account4.1, the Initiating Holders shall, on behalf of all Holders, Company may offer to include the securities of the Company and such securities Other Stockholders in the underwriting and (in the case of Other Shareholders) may condition such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its on their acceptance of the further applicable provisions of this Section 2 (including Section 2.10)Agreement. The Company shall (together with all Holdersthe Holders and Other Stockholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the underwriter or representative of the underwriter or underwriters selected for such underwriting by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Companyunderwriting. Notwithstanding any other provision of this Section 2.14.1, if the representative of the underwriters advise advises the Initiating Holders Company in writing that that, in its opinion, marketing factors require a limitation on the number of shares to be underwritten, the Company shall so advise the Holders and the number of shares of Registrable Securities and other securities that may be so included in the registration and underwriting shall be allocated as followsin the following manner: (i) first, among all Holders requesting to include Registrable Securities in the securities being sold for the account of the Company shall be excluded from such registration statement based on and underwriting to the pro rata percentage of Registrable Securities held extent required by such Holders on a Fully Diluted basis; and limitation (ii) second, if a limitation on the number of shares is still required, the securities held by the Other Stockholders of the Company shall be excluded from such registration and underwriting to the Companyextent required by such limitation in proportion, which as nearly practicable, to the respective amounts of securities requested to be registered by such Other Stockholders or otherwise as their rights may appear and (iii) third, if a limitation on the number of shares is still required, the securities held by the Holders of the Company may allocateshall be excluded from such registration and underwriting to the extent required by such limitation in proportion, at its discretionas nearly practicable, for its own account, or for to the account respective amounts of other holders or employees of securities requested to be registered by the CompanyHolders. If the Company or a person Holder or any Other Stockholder who has requested inclusion in such registration as provided above does not agree to disapproves of the terms of any such the underwriting, such person shall be excluded may elect to withdraw therefrom by written notice from to the Company, the underwriter or the Initiating Holders. The securities so excluded withdrawn shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously reduced as a result of marketing factors If, pursuant to this Section 2.1(d)paragraph, then any of the Company shall then offer securities being sold for the account of such Holder are to all Holders that have retained rights to include securities in be excluded from such registration and underwriting, such Holder may withdraw its request for such registration or underwriting and such request will not be counted as the registration the right permitted under Section 4.1 of this Agreement, or such Holder may have such securities registered as a non-underwritten "shelf" registration pursuant to include additional Registrable Securities in the registration in an aggregate amount equal to the number of shares so withdrawn, with such shares to be allocated among such Holders requesting additional inclusion, as set forth aboveRule 415.
Appears in 1 contract
Sources: Registration Rights Agreement (Republic Airways Holdings Inc)
Underwriting. If In the Initiating Holders intend event that a registration pursuant to distribute the Registrable Securities covered by their request by means of paragraph 7.5 is for a registered public offering involving an underwriting, they the Company shall so advise the Company Holders and Other Investors as a part of their request made pursuant to this Section 2.1 and the Company shall include such information in the written notice given pursuant to Section 2.1(a)(iparagraph 7.5(a)(i). In such event, the right of any Holder or Other Investor to include all or any portion of its Registrable Securities in a registration pursuant to this Section 2.1 paragraph 7.5 shall be conditioned upon such Holder’s 's or Other Investor's participation in such the underwriting arrangements required by this paragraph 7.5, and the inclusion of such Holder’s 's Registrable Securities or Other Investor's Other Securities in the underwriting to the extent requested shall be limited to the extent provided herein. If the Company shall request inclusion in any registration pursuant to Section 2.1 of securities being sold for its own account, the Initiating Holders shall, on behalf of all Holders, offer to include such securities in the underwriting and such offer shall be conditioned upon the participation of the Company in such underwriting and the inclusion of the Company’s securities and its acceptance of the further applicable provisions of this Section 2 (including Section 2.10). The Company shall (together with all HoldersHolders and other shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the managing underwriter or underwriters selected for such underwriting by the Company, but subject to the reasonable approval by a majority in interest of the Initiating Holders, which underwriters are reasonably acceptable to the Company. Notwithstanding any other provision of this Section 2.1paragraph 7.5, if the underwriters advise managing underwriter advises the Initiating Holders in writing that marketing factors require a limitation on of the number of shares to be underwritten, the number managing underwriter may limit the Registrable Securities or Other Securities to be included in such registration; provided, however, that with respect to any offering involving an underwriting of Registrable Securities that may be so included being sold by the Holders pursuant to this paragraph 7.5, then no such limitation shall be allocated as follows: (i) first, among all Holders requesting made with respect to include the shares of such Holders' Registrable Securities in such registration statement based on the pro rata percentage until shares of Registrable Other Securities held by such Holders on a Fully Diluted basis; and (ii) second, to the Company, which of the Company may allocate, at its discretion, for its own account, or for the account of other holders or employees of the Company. If a person who has requested inclusion in such registration as provided above does not agree to the terms of any such underwriting, such person shall be excluded therefrom by written notice from the Company, the underwriter or the Initiating Holders. The securities so excluded shall also be withdrawn from registration. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall also be withdrawn from such registration. If shares are so withdrawn from the registration and if the number of shares to be included in such registration was previously (but for this provision) have been reduced as a result of marketing factors pursuant to this Section 2.1(d), then the or excluded. The Company shall then offer to so advise all Holders that have retained rights to include securities in the registration the right to include additional holders of Registrable Securities in the registration in an aggregate amount equal to and Other Securities, and the number of shares so withdrawn, of Registrable Securities and Other Securities that may be included in the registration and underwriting (in accordance with such shares to the principle of allocation set forth in the preceding sentence) shall be allocated among all participants thereof (except those Holders and other shareholders who have indicated to the Company their decision not to distribute any of their Registrable Securities or Other Securities through such underwriting) in proportion, as nearly as practicable, to the respective amounts of Registrable Securities and Other Securities held by such Holders requesting additional inclusionand Other Investors at the time of filing the registration statement. No Registrable Securities or Other Securities excluded from the underwriting by reason of the underwriter's marketing limitation shall be included in such registration. To facilitate the allocation of shares in accordance with the above provisions, as set forth abovethe Company or the underwriters may round the number of shares allocated to any Holder or Other Investor to the nearest 100 shares.
Appears in 1 contract